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U.S. v. Gutierrez-Sanchez (9th Cir. - March 23, 2009)

By Shaun Martin

Here's a case that helps establish a couple of self-evident points. First, that some people really, really want to be in the United States. Like Hugo Gutierrez-Sanchez, who had previously been caught in and removed from the United States twelve times prior to being found in the brush a couple of hundred yards north of the U.S.-Mexico border on lucky number thirteen.

Second, those same facts establish something that people in San Diego already know fairly well: that it traditionally takes a lot before the government does anything more than ship you back to where you came from. A fact that, among other things, led Carol Lam to be fired by Bush from her former U.S. Attorney job. The problem of what you do with people who keep coming back is not an easy one, especially when applied to people (unlike Gutierrez-Sanchez) who aren't violent and whose only crime is wanting to live in the United States.

Third, what happens here highlights both the reality of the modern plea bargaining system in an overworked judiciary (e.g., border crimes down here in San Diego) as well as the fact that it does not always work as planned. On the one hand, the U.S. Attorney is desperate to get a guilty plea because there's no way we can possibly take even a fraction of these border crime cases to trial. On the other hand, it's No. 13, so we gotta have him do some time. The guideline range for being a deported alien in the United States is 10-16 months, but there obviously has to be an incentive to plea otherwise the deal won't work, so the deal is for him to plead guilty to a lesser offense of making a false statement to a federal official, based on the fact that when he was caught, he gave a fake name to ICE. That crime results in a lower guideline range of 6-12 months, the parties agree to recommend 9, and hence we have a deal. Nine instead of 10-16. Pareto optimal.

That's how these things work. But here's the rub: The parties also understand that this type of deal isn't binding on the judge. And Judge Larry Burns, down here in San Diego, doesn't like the deal, and so decides to sentence Gutierrez-Sanchez based on the "real" guidelines range, and as a result imposes the high end of 16 months. Gutierrez-Sanchez appeals, of course, but the Ninth Circuit affirms.

Which obviously works in an individual case, at least if you agree with Judge Burns. (Here's his rationale: "It?s incumbent upon me to fashion some kind of sentence which will tell him 'we mean business. When we say don?t come back, it?s not just some mantra that a guy in a black robe waves in front of you or words that are repeated. We mean it. Don?t come back. Bad things are going to happen to you if you come back. You?re going to spend a lot of time in an American jail, which has got to be worse than your country.?) The downside, of course, is that rejecting the plea deal, if such rejections become more than extremely isolated exceptions, will result in fewer deals and hence more trials. Which, again, the U.S. Attorney can't accept, potentially resulting in even more unjust deals (i.e., not putting the full facts into the record or agreeing to voluntary departure and dropping of all charges) as a means of avoiding the possibility of judicial discretion which the defendant can't (or is unwilling to) risk.

This is a problem inherent in all systems -- like ours -- founded so fundamentally on plea deals, but the situation with border crimes down here in San Diego is a good exemplar. So it's a great case for the practical as well as theoretical side of plea negotiations, judicial supervision, and the larger problem of dealing with pervasive non-serious criminality.

Full post as published by California Appellate Report on March 23, 2009 (boomark / email).