cr 12-00642 lek in the united states court of … · vs. alvar gante toledo defendant/appellant....

CA NO. 12-10630 CR 12-00642 LEK (District of Hawaii)

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee v. ALVAR GANTE TOLEDO Defendant/Appellant. __________________________________ _______________________ APPELLANT'S OPENING BRIEF _____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONORABLE LESLIE E. KOBAYASHI UNITED STATES DISTRICT COURT JUDGE DE ANNA S. DOTSON, ESQ. P.O. Box 75554 Kapolei, HI 96707 (808) 594-6480 Attorney for Appellant ALVAR GANTE TOLEDO

Case: 12-10630 04/24/2013 ID: 8602866 DktEntry: 10 Page: 1 of 32

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TABLE OF CONTENTS

Page TABLE OF AUTHORITIES…………………………………………………4 I. STATEMENT OF ISSUE PRESENTED FOR REVIEW ................ 6 II. STATEMENT OF THE CASE............................................................. 7 A. NATURE OF THE CASE 1. JURISDICTION OF THE DISTRICT COURT ............... 7 2. BASIS FOR JURISDICTION IN THE COURT OF APPEALS............................................................................ 7 3. NOTICE OF APPEAL WAS TIMELY............................. 7 B. PROCEEDINGS AND DISPOSITION OF THE TRIAL COURT............................................................................... 7 C. BAIL STATUS .............................................................................. 9 III. STATEMENT OF THE FACTS .......................................................... 9 IV. STANDARD OF REVIEW AND ARGUMENT A. THE GOVERNMENT BREACHED ITS PLEA AGREEMENT

WITH MR. TOLEDO WHICH RENDERS MR. TOLEDO’S

WAIVER OF APPELLATE RIGHTS UNENFORCEABLE.

1. Standard of Review……………………………………13

2. Summary of Argument………………………………...13


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3. Legal Analysis…………………………………………15

a. Government Argued for Higher Drug Quantity and

Higher Offense Level than Agreed Pursuant to the

Plea Agreement…………………………………16

b. The Government Breached the Terms of the

Proffer Agreement………………………………20

c. All Prongs of the Plain Error Review Have

Been Satisfied…………………………………...25

V. CONCLUSION ..................................................................................... 28 CERTIFICATE OF RELATED CASES ..................................................... 29 CERTIFICATE OF COMPLIANCE........................................................... 30 CERTIFICATE OF SERVICE……………………………………………31


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TABLE OF AUTHORITIES CASES PAGE California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)……………….24 Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.ed.2d 437 (1984)………………..18 Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed. 2d 266 (2009)……………25 Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.ed.2d 427 (1971)……………………15, 26 United States v. Anderson, 970 F.2d 602, 606 (9th Cir. 1992)…………………………………………20 United States v. Camarillo-Tell, 236 F.3d 1024,1028 (9th Cir. 2001)…………………………………….19,20 United States v. Chiu, 109 F.3d 624, 625 (9th Cir. 1997)………………………………………20,21 United States v. De la Fuentes, 8 F.3d 1333,1337 n.8 (9th Cir. 1993)………………………………………16 United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989)………………………………………….24 United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002)………………………………………….16 United States v. Gonzalez-Melcher, 648 F.3d 959, 963 (9th Cir. 2011)………………………………………….15 United States v. Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999)……………………………………….15


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United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.2000)………………………………………13, 27 United States v. Loan, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993)………….13

United States v. Plummer, 941 F.2d 799, 803 (9th Cir. 1991)………………………………………….20 United States v. Trapp, 257 F.3d 1053, 1056 (9t Cir. 2001)………………………………………...15

United States v. Recoil, 371 F.3d 1093,1100 (9th Cir. 2004)………………………………………...13 STATUTES AND RULES 18 USC §§ 3553(f) (1) through (5)………………………………………...20 18 U.S.C. § 3231……………………………………………………………..7 21 U.S.C. 841 (a)(1) and (b)(1)(A)…………………………………….8, 9, 10 28 U.S.C. § 1291 …………………………………………………………….7 USSG § 1B1.8(a)………………………………………………11, 14, 22, 23 USSG §5C1.2………………………………………………………………17


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CA NO. 12-10630 CR 12 CR 00642LEK (District of Hawaii) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee, vs. ALVAR GANTE TOLEDO Defendant/Appellant. ____________________________

I.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. The government breached the plea agreement.

2. The government breached the proffer agreement.


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II.

STATEMENT OF THE CASE

A. Nature of the Case

1. Jurisdiction of the District Court.

This appeal is from the District Court's Judgment on November

29, 2012 and filed on December 3, 2012. The District Court had jurisdiction

pursuant to Title 18 U.S.C. § 3231.

2. Basis for Jurisdiction in the Court of Appeals.

Mr. Alvar Gante Toledo is appealing his judgment and sentence.

This Court has jurisdiction over appeals from final judgments under Title 28

U.S.C. § 1291.

3. Notice of Appeal was Timely.

The district court entered sentence and judgment against

appellant on November 29, 2012. The Notice of Appeal was filed timely on

December 6, 2012. ER: 1 1

B. Proceedings and Disposition of the Trial Court.

On November 16, 2011, an Indictment was filed under criminal

case 11 - 01026LEK against Appellant Alvar Gante Toledo, charging him with 1 ER refers to Excerpt of Clerk’s Record, RT refers to Reporter’s Transcript, DS refers to Court Docket Sheet, PSR refers to Presentence Report.


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possession with intent to distribute 500 grams or more, to wit: approximately

1,091 grams of a mixture and substance containing a detectable amount of

methamphetamine, its salts, isomers, and salts of its isomers in violation of 21

USC §§841(a)(1) and 841(b)(1)(A). ER: 60

On June 15, 2012, an Information was filed under criminal case

12 - 00642LEK charging Mr. Toledo with possession with intent to distribute

fifty (50) grams or more, to wit: approximately 723.69 grams of

methamphetamine, its salts, isomers, and salts of its isomers in violation of 21

USC §§841(a)(1) and 841(b)(1)(A). ER: 55

On June 18, 2012, Mr. Toledo withdrew his not guilty plea and

pled guilty to the charges stated in the Information pursuant to a Plea

Agreement. ER: 32 - 37, 39.

The District Court entered judgment and sentence on November

29, 2012. Mr. Toledo was sentenced to120 months imprisonment. ER: 4

Mr. Toledo filed a notice of appeal from the judgment and

sentence on December 6, 2012. ER: 1.

C. Bail Status

Appellant Alvar Gante Toledo is presently in custody serving his

sentence. His release date is July 18, 2020.


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III.

STATEMENT OF THE FACTS

The Indictment in criminal case 11-01026LEK, filed November

16, 2011, charged Mr. Toledo with “knowingly and intentionally possess,

with intent to distribute, five hundred (500) grams or more, to wit:

approximately 1,091 grams, of a mixture and substance containing a

detectable amount of methamphetamine, its salts, isomers, and salts of its

isomers, a Schedule II controlled substance.” All in violation of 21 USC §§

841(a)(1) and 841(b)(1)(A). ER: 60.

On December 1, 2011, Mr. Toledo signed a proffer letter with

the government prior to his three (3) debriefing sessions with the

government. This proffer letter was in relation to criminal case 11-

01026LEK. ER: 58.

On June 15, 2012, an Information was filed under criminal case

12-00642LEK which charged Mr. Toledo with “knowingly and intentionally

possess, with intent to distribute, fifty (50) grams or more, to wit:

approximately 723.69 grams, of methamphetamine, its salts, isomers, and

salts of its isomers, a Schedule II controlled substance.” All in violation of

21 USC §§ 841(a)(1) and 841(b)(1)(A). ER: 55.


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On June 18, 2012, Mr. Toledo accepted a Plea Agreement with

the government and pled guilty to the charges as stated in the Information;

possession with intent to distribute 50 grams or more of methamphetamine.

As consideration for this Plea Agreement, the government agreed to dismiss

the Indictment in criminal case 11-01026LEK at the time of sentencing.

As consideration of this Plea Agreement, Mr. Toledo gave up many

constitutional rights, including a right to appeal his conviction and sentence.

ER: 30, 33, 35-39.

Additionally, as part of the Plea Agreement, Mr. Toledo and the

government stipulated to the facts found in paragraphs 6, 7, and 8. The

government and Mr. Toledo stipulated to the following for sentencing

purposes:

1. The parties stipulate to the facts as set forth in paragraph 8 of

the plea agreement;

2. The parties further agree that Mr. Toledo is responsible for not

less than 723.69 grams of actual methamphetamine;

3. The parties further stipulate to a base level of 36 under the

sentencing guidelines.

ER: 35; 44-46; PSR ¶ 6.


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Mr. Toledo does not have any previous convictions; therefore

he would be in a criminal history category I. Because of Mr. Toledo’s

acceptance of responsibility and assistance in his investigation, he would be

entitled to a three level adjustment.

Pursuant to a proffer letter with the government to cooperate,

Mr. Toledo provided substantial information to the government regarding

his unlawful activities. In the Plea Agreement the government agreed that

any self-incriminating information provided by Mr. Toledo pursuant to the

proffer to cooperate would not be used in determining the applicable

guideline range as provided under USSG § 1B1.8(a). ER: 53.

At the conclusion of the plea colloquy, Mr. Toledo pled guilty

to the charges specifically stated in the Information. ER: 39. The

Presentence Investigation Report (PSR) made a recommendation to the court

to sentence Mr. Toledo at a base offense level 38 based on additional

quantities of drugs purchased/distributed prior to the count of conviction.

However, the government stipulated to a sentencing base offense level 36

and the specific amount of methamphetamine charged in the Information of

723.69 grams, not 38 pounds as stated in the PSR. ER: 46 PSR ¶¶ 6,19.

The district court accepted the recommendations of the

probation department for sentencing and used their base offense level of 38.


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At the sentencing hearing on November 29, 2012, the

government argued in support of the probation department’s

recommendation. The government did not adhere to its part of the bargain

from the Plea Agreement by stipulating to a specific drug quantity and base

offense level of 36. ER: 13-16, 46; PSR ¶ 6.

The court accepted the Plea Agreement between Mr. Toledo

and the government. ER: 8. The government did not file any motions for

downward departure. ER: 9, 26.

The court made a finding that Mr. Toledo qualified for the

safety valve pursuant to 18 USC §§ 3553(f) (1) through (5), which permitted

a sentence below the statutory minimum sentences of 120 months. ER: 11,

25. The district court sentenced Mr. Toledo to 120 months of imprisonment

based upon the PSR recommendations of a base sentencing level 38 that was

supported by the government. ER: 13-16.


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ARGUMENT

A. THE GOVERNMENT BREACHED ITS PLEA

AGREEMENT WITH MR. TOLEDO WHICH RENDERS

MR. TOLEDO’S WAIVER OF APPELLATE RIGHTS

UNENFORCEABLE.

1. Standard of Review

The standard for reviewing a claim that the government

breached a plea agreement is generally reviewed de novo. See United States

v. Mondragon, 228 F.3d 978, 980 (9th Cir.2000). However, Toledo did not

argue during the sentencing proceedings that the government breached the

plea agreement; therefore the standard of review would be plain error.

United States v. Recio, 371 F.3d 1093,1100 (9th Cir. 2004) (citing United

States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed. 2d 508

(1993).

2. Summary of Argument

Mr. Toledo and the government entered into a binding Plea

Agreement in which each party gave consideration. Mr. Toledo gave up

several constitutional rights including his right to appeal his conviction and

sentence. The government gave as consideration its promise to dismiss the

Indictment on criminal case 11-01026LEK in which Mr. Toledo was


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charged with an increased amount of drugs than was charged on the

subsequent Information. Additionally, as part of this contract, both parties

stipulated to a base offense level of 36 for sentencing and that Mr. Toledo

was responsible for 723.69 grams of actual methamphetamine. Even though

the court was not bound by this Plea Agreement between the government

and Mr. Toledo, the government was contractually bound to its terms.

The government breached their Plea Agreement by adamantly

arguing in support of the sentence recommended by the probation

department that was in direct conflict with the government’s promise in the

Plea Agreement. The government also agreed not to use any self-

incriminating information Mr. Toledo provided during his cooperation with

the government pursuant to § 1B1.8(a); and the proffer letter dated

December 1, 2011.

The government had a duty to support its part of the negotiated

bargain of the Plea Agreement. Mr. Toledo relied on those promises when

he entered into the Plea Agreement. The government failed to perform its

part of the bargain – the government breached the terms of the Plea

Agreement and breached the terms under the proffer letter. The integrity of

this Court requires that Mr. Toledo’s sentence be vacated.


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3. Legal Analysis

The standards controlling adherence to a plea agreement were

set forth by the Supreme Court in Santobello v. New York, 404 U.S. 257, 92

S.Ct. 495, 30 L.ed.2d 427 (1971). In Santobello, in exchange for the

defendant’s plea of guilty, the prosecutor agreed to make no sentencing

recommendations. At sentencing, however, a new prosecutor recommended

the maximum one year sentence. The Court held that a guilty plea “must, of

course, be voluntary and knowing and if it was induced by promises, the

essence of those promises must in some way be made known. Id. at 261-262.

The Court further held that when a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be fulfilled.

Id. at 262.

"We construe a plea agreement as a contract between the

prosecutor and the defendant." United States v. Gonzalez-Melchor, 648 F.3d

959, 963 (9th Cir. 2011). See also (“Plea agreements are contract,” and the

government must comply with the terms of the agreement. United States v.

Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999).) As a contract, a plea

agreement is measured by contract law standards. United States v. Trapp,

257 F.3d 1053, 1056 (9t Cir. 2001). The courts enforce the literal terms of


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the plea agreement, but construe ambiguities in favor of the defendant, by

placing the responsibility on the government for any lack of clarity. United

States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002).

In order to construe the Plea Agreement, it is necessary for the

court to determine what Mr. Toledo reasonably believed to be the terms of

the agreement at the time of the plea. See United States v. De la Fuente, 8

F.3d 1333,1337 n.8 (9th Cir. 1993) (“[I]t is the defendant’s understanding at

the time of the plea that controls.”) Mr. Toledo is entitled to the benefit of

his bargain with the government.

a. Government Argued for Higher Drug Quantity

and Higher Offense Level than Agreed

Pursuant to the Plea Agreement

The pertinent part of the Plea Agreement between Mr. Toledo

and the government specifically provided that the parties stipulated to a

specific drug quantity of 723.69 grams of actual methamphetamine and to a

base offense level of 36 based on that total weight. ER: 33-35; 45,46. This

was based upon information that was available to the government at the time

of the acceptance of this agreement by the government and Mr. Toledo on

June 18, 2012. ER: 54. Even though the district court was not bound by the

stipulations between the parties, the government was bound to their


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contractual stipulations.

The government specifically stipulated to the drug quantity in

the agreement and not the increased drug quantity alleged in the PSR. The

government also stipulated to a lower offense level than stated by the PSR. 2

The court found that Mr. Toledo qualified for the ‘safety valve’

reduction pursuant to 18 USC §§ 3553(f)(1)-(5); therefore the court could

sentence below the statutory mandatory minimum sentence of ten years

pursuant to USSG §5C1.2.; and further reduce the offense level by two (2)

points. Additionally, the court granted a two (2) point reduction for

acceptance of responsibility and the government requested a one (1) level

reduction for acceptance of responsibility. Therefore, five (5) offense level

reductions were granted by the court that resulted in a final offense level of

33. The court found that the guideline range for criminal history category I

was 135 to 168 months. However, due to the application of the safety valve,

the court sentenced Mr. Toledo to 120 months. ER: 25, 26.

2 The PSR started with a base offense level 38 due to the increased drug quantity of 38 pounds; the plea agreement stipulated a base offense level 36 based on the drug quantity of 723.69 grams stated in the plea agreement and charged in the Information.


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If the exact same reductions of the offense levels and the

application of the safety valve were applied to the stipulated base offense

level 36, the base offense level that induced Mr. Toledo to accept the plea

agreement and forfeit many constitutional rights, then Mr. Toledo should

have been sentenced under offense level 31. The bottom of this level is 108

months. Mr. Toledo was sentenced 12 months more than he should have

been pursuant to his Plea Agreement given the fact that he would be entitled

to the very same sentencing reductions and applications of the guidelines.

Mr. Toledo should have received the benefit of his agreement with the

government.

By entering into this Plea Agreement, Mr. Toledo voluntarily

and knowingly surrendered many of his constitutional rights in exchange for

a commitment by the government to do or not do certain things. When the

government breached the agreement, they violated Mr. Toledo’s due process

rights by implicating the consideration and voluntariness upon which the

plea was based. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543,

81 L.ed.2d 437 (1984) (“It follows that when the prosecution breaches its

promise with respect to an executed plea agreement, the defendant pleads

guilty on a false premise, and hence his conviction cannot stand.”)


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Instead of objecting to the guideline recommendations of the

PSR, which contradicted the Plea Agreement, the government agreed with

and supported the proposed PSR sentencing recommendations. (ER: 13-16;

PSR pg 19. By doing so, the government supported the conclusion that Mr.

Toledo should be sentenced based upon the information protected by the

proffer agreement. Even though the court does not have to abide by the

terms of the Plea Agreement, the government does have that obligation.

At the sentencing hearing, the government again argued facts

outside of the perimeters of the Plea Agreement and in support of the

increased sentence recommendation of the PSR. ER: 13-16; 23, 24. The

government had an obligation to present a “united front” to the court

regarding the sentencing recommendations. “Presenting this “united front” is

the defendant’s benefit of the bargain. It is not always much of a benefit, as

the sentencing courts do not have to follow the joint recommendation.

Nevertheless, the chance that the court will follow the joint recommendation

is often the basis upon which defendants waive their constitutional right to

trial.” United States v. Camarillo-Tello, 236 F.3d 1024,1028 (9th Cir. 2001).

“Anytime a defendant enters an agreement to plead guilty in exchange for a

sentence recommendation, the defendant knows the court may not grant that

recommendation. What the defendant wants and is entitled to is the added


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persuasiveness of the government’s support regardless of the outcome.” Id.

The government had a contractual obligation to perform their

part of the bargain of the Plea Agreement in opposing the recommendations

for a sentence that contradicted the agreement. Instead, the government

argued in support of the sentence for 38 pounds, not the stipulated 723.69

grams in the Plea Agreement. The government breached the Plea

Agreement, which requires this Court to vacate Mr. Toledo’s sentence and

remand for resentencing.

b. The Government Breached the Terms of the

Proffer Agreement

Proffer agreements are analogous to plea agreements

and informal immunity agreements, which are resolved by

application of contract principles; therefore the court should apply

contract principles to the interpretation of a proffer agreement.

United States v. Chiu, 109 F.3d 624, 625 (9th Cir. 1997), referring

to United States v. Anderson, 970 F.2d 602, 606 (9th Cir. 1992),

as amended, 990 F.2d 1163 (1990) (plea agreement); United

States v. Plummer, 941 F.2d 799, 803 (9th Cir. 1991) (informal

immunity agreement). Whether the facts constitute a violation of


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contract law is a question of which the Court reviews de novo.

Chiu at 625.

On December 1, 2011, the government and Mr. Toledo signed a

proffer letter agreement to protect Mr. Toledo’s statements from being used

against him in specific circumstances. The Indictment filed November 16,

2011, for criminal case 11-0126 LEK was the basis of this agreement.

Essential elements of this Indictment charged Mr. Toledo with intentionally

possessing with intent to distribute 500 grams or more of methamphetamine:

to wit 1,091 grams. ER: 58, 60.

The government provided information to the probation

department concerning the drug quantity attributed to Mr. Toledo in the

amount of 38 pounds. The specific amount was used to calculate the base

offense level 38.

The language in the proffer letter prohibited the introduction of

any statements made by Mr. Toledo for the “purpose of determining an

appropriate sentence…” ER: 58. Additionally, the USSG provides:

“Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self- incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.” U.S.S.G. § 1B1.8(a)


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Mr. Toledo contends that presenting the protected statements to

the court through the probation department is a breach of the proffer

agreement. The protected information was before the eyes of the court

through the PSR. This information was prejudicial to Mr. Toledo as it set the

base offense level higher than stipulated in the plea agreement.

The probation department recommended to the court a base

offense level 38. The justification for this offense level was supported by

confidential information provided by Mr. Toledo during conversations with

the government protected pursuant to § 1B1.8(a). The government argued

that the increased drug quantity was not protected information; however if

this information was not protected Mr. Toledo should have been specifically

notified by the government. Mr. Toledo was under the assumption that any

information he divulged to the government pursuant to this proffer letter was

protected and not to be used against him.

The proffer agreement specifically stated that, “This Agreement

is limited to the statements made by Mr. Toledo at the meetings referred to

herein, and does not apply to any statements made by Mr. Toledo at any

other time, whether oral, written or recorded.” ER: 58.

Mr. Toledo’s attorney argued fervently during the sentencing

hearing that the increased drug quantity was revealed during those protected


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conversations with the government. The government claimed that the drug

quantities were given prior to the proffer letter being signed and before an

attorney represented Mr. Toledo. ER: 17-19, 23, 24. It is a logical

assumption that if information is proffered that is self-incriminating to Mr.

Toledo and not included within the protection of §1B1.8(a), then the

government had an ethical duty to clearly disclose that very pertinent

information to Mr. Toledo and his attorney at the time the information was

revealed during the debriefings.

Pretending to accept the self-incriminating information under

the guise of protection should void the government’s argument that it was

not protected. These protected conversations with the government took place

prior to the Plea Agreement being created, accepted and signed. These

conversations also predated the Information filed June 15, 2012. The

Information charged Mr. Toledo with a reduced amount of drugs than was

charged in the Indictment.

The Plea Agreement was signed and filed on June 18, 2012. On

this same date Mr. Toledo pled guilty to the Information filed a few days

earlier. The information filed under a different case number, 12-00642 LEK,

charged Mr. Toledo with possession with intent to distribute 50 grams or

more of methamphetamine, to wit: approximately 723.69 grams. This


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specific amount was stipulated in the Plea Agreement, not 38 pounds or the

higher drug amount in the Indictment. Mr. Toledo pled guilty to the

Information, not the Indictment. The Indictment was dismissed at sentencing

pursuant to the Plea Agreement. ER: 32-35; 40, 54, 55, 60.

The United States Attorney is the representative of a

sovereignty whose obligation to govern impartially is as compelling as its

obligation to govern at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that justice shall be done.

“Under the Due Process clause, criminal prosecutions must

comport with prevailing notions of fundamental fairness." United States v.

Endicott, 869 F.2d 452, 455 (9th Cir. 1989) (quoting California v. Trombetta,

467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)).

The government had a duty to disclose the fact that Mr. Toledo

had already provided the same information prior to the date of the proffer

agreement, if in fact that was the case. To withhold that pertinent

information from Mr. Toledo and his attorney does not comport with the

notions of fundamental fairness. Mr. Toledo relied on the representations of

the government and the protections of this proffer agreement when he

entered into the Plea Agreement with the government; when he pled guilty

pursuant to the Plea Agreement; and when he forfeited many of his


25

constitutional rights. The government breached the terms and intent of the

proffer agreement by purposely disclosing protected information for the

purposes of increasing Mr. Toledo’s sentence. This act by the government

contradicted the terms of the proffer agreement and the Plea Agreement;

therefore was a direct breach of both agreements.

c. All Prongs of the Plain Error Review Have

Been Satisfied

The government breached the Plea Agreement and the terms of

the proffer agreement as previously outlined. This was error and it was plain

as the Supreme Court has recognized that the government’s breach of a plea

agreement is “undoubtedly a violation of the defendant’s rights.” Puckett v.

United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed. 2d 266 (2009).

The government clearly breached it proffer agreement by

disclosing protected information; the government breached the terms of the

Plea Agreement by arguing for an increased base offense level. Under

contract law, a breach of contract entitles the other party, Mr. Toledo, to be

made whole. Mr. Toledo did not receive the benefit of his bargain with the

government. Based on all of the guideline sentence reductions pronounced

by the court, Mr. Toledo’s total offense level should have been level 31, not

level 33. According to the sentencing table for criminal history category I,


26

level 33 has a range of 135-168 months and level 31 has a range of 108 to

135 months. However, the court applied its discretion and sentenced Mr.

Toledo to 120 months, not the lower end of the guideline range of 135

months.

Using the same sentence reductions and the court’s reasoning,

Mr. Toledo should have been sentenced to 108 months not 120 months (a

difference of 12 months). The court found that Mr. Toledo satisfied the

requirements for the application of the safety valve; therefore the court was

permitted to sentence Mr. Toledo below the mandatory minimum of 120

months. Mr. Toledo did not receive the benefit of his bargain with the

government; therefore he was prejudiced by the government’s breach in

arguing for a higher sentence and disclosing statements made pursuant to the

proffer agreement, which affected his substantial rights.

The government's inducement of the defendant's plea, and the

consequent forfeiture of his constitutionally guaranteed rights, requires that

"a promise or agreement of the prosecutor . . . must be fulfilled." Santobello,

404 U.S. at 262. "The integrity of our judicial system requires that the

government strictly comply with its obligations under a plea agreement."

Mondragon, 228 F.3d at 981.

Ignoring the government's failure to adhere to this promise in


27

the face of Mr. Toledo's own compliance would substantially challenge

notions of fairness and integrity within the judiciary. Thus, in the absence of

clearly countervailing factors, the government's breach of the parties' Plea

Agreement must be considered a serious violation of the integrity of the plea

bargain process and the judicial system.

Mr. Toledo has satisfied all four requirements to show that his

sentence was affected by plain error, and he is entitled to relief. When the

government violates an agreement regarding sentencing, vacating and

remanding the sentence is required regardless of the effect the breach

actually had on the sentence. See Mondragon, 228 F. 3d at 980-81.


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V.

CONCLUSION

Based on the foregoing, Appellant Toledo respectfully requests

that this Court vacate his sentence and remand for resentencing.

Dated: April 24, 2013 at Kapolei, Hawaii s/ DeAnna S. Dotson Attorney for Appellant

ALVAR GANTE TOLEDO


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CERTIFICATE OF RELATED CASES

Counsel is not aware of any related cases on appeal before this

Court.

DATED: April 24, 2013 at Kapolei, Hawaii s/ DeAnna S. Dotson Attorney for Appellant


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CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 2 (e)(3), I certify that the opening

brief is proportionately spaced, has a New Times Roman typeface of 14 points

or more and contains 4275 words. The text is double spaced.

DATED: April 24, 2013 at Kapolei, Hawaii s/ DeAnna S. Dotson Attorney for the Appellant


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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2013, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the forgoing document by First Class Mail, postage prepaid, to the non-CM/ECF participants. I further certify that I have mailed the Excerpts of Record by First Class Mail, postage prepaid to the following: Alvar Gante Toledo 14139-022 CI McRae P.O. Box 30 McRae, GA 31055 s/ DeAnna S. Dotson


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cr 12-00642 lek in the united states court of … · vs. alvar gante toledo defendant/appellant....

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