Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding D.C. No. 3:10-cr-03434- DMS-1
The opinion of the court was delivered by: Gould, Circuit Judge:
December 9, 2011-Pasadena, California
Before: Dorothy W. Nelson, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.
Sergio Alcala-Sanchez ("Alcala") appeals the sentence imposed after he pled guilty to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Alcala contends that the government breached the plea agreement, notwithstanding the government's later admission that it made a mistake in its initial sentencing recommendation and its substitution of the recommendation to which Alcala and the government had agreed in the plea agreement. We have jurisdiction under 28 U.S.C. § 1291. We vacate Alcala's sentence and remand for resentencing before a different district judge.
On August 1, 2010, a Customs and Border Patrol agent saw Alcala walking along Interstate 905, about three miles north of the San Ysidro, California Port of Entry. The agent contacted Alcala. After first giving the agent a false name and date of birth, Alcala admitted that he was in the United States illegally and gave his true identity. Alcala had previously been deported from the United States.
The government filed a one-count Information charging Alcala with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b). Alcala entered into a "Fast-Track" plea agreement with the government. He pled guilty to the charge in the Information and admitted the elements of the offense. Alcala also admitted to being deported after a 1995 conviction for burglary, an aggravated felony, in violation of California Penal Code § 459.
In the plea agreement, the parties agreed that U.S. Sentencing Guidelines ("U.S.S.G.") § 2L1.2 applied, and they agreed to the following Guidelines calculations: a base offense level of 8, an 8-level enhancement for the 1995 aggravated felony conviction, a 3-level reduction for acceptance of responsibility, and a 1-level reduction for fast-track departure. Pursuant to these calculations, the government agreed to recommend a total offense level of 12. The parties did not agree on Alcala's criminal history category, and the government could recommend a sentence at the high end of the Guidelines range.
The Probation Office filed a presentence report ("PSR"). Though the PSR recognized the parties' agreement to recommend a total offense level of 12, it calculated a total offense level of 20 and a Guidelines range of 63 to 78 months.*fn1 The PSR determined that Alcala's 1993 conviction for dissuading a witness by force or threat, in violation of California Penal Code § 136.1(c)(1), constituted a crime of violence. Accordingly, the PSR calculated a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). It also calculated reductions for acceptance of responsibility and ...