Ignoring Rita, Tenth Reasserts that District Courts May Not Disagree with Guidelines' Policy; WA Assault Statute a COV

U.S. v. Perez-Perez, 2007 WL 2203095 (8/2/07)(unpub'd) - The Fast-Track plea agreement provided for an offense level of 12, but allowed the government to withdraw from the agreement if it was discovered the defendant had a felony conviction that fit within § 2L1.2(b)(1)(A) or (B). The PSR noted a prior conviction that would require an enhancement under (b)(1)(A). The government didn't notice this until the night before the sentencing hearing. At the hearing, the government asked the court to reject the agreement. The judge continued the hearing to allow for briefing. In the briefing, the government sought to withdraw from the plea agreement. The 10th held the government's initial request for a plea rejection, rather than a plea withdrawal did not constitute a breach, because it eventually requested a withdrawal and the agreement did not provide for the government to withdraw by any particular time before sentencing. The 10th did admonish the government in a footnote that it is supposed to follow Rule 32(f)'s objection-timing requirements.

The defendant's conviction for assault in Washington was a crime of violence, even though the Washington statute allowed for conviction based on recklessly inflicting bodily harm, because the defendant admitted to intentionally assaulting and inflicting substantial bodily harm. The 10th believed this showed the defendant intended to use physical force and so the assault was a crime of violence.

The 10th ignores Rita's apparent indication that a d.ct. can sentence based on its belief a guideline is "unsound policy," finds the sentence reasonable [the defendant did get a sentence below the guideline range, apparently due to the plea agreement confusion], and reiterates what it has said pre-Rita that a disagreement with the policy decisions of the Sentencing Commission is not a valid reason to impose an outside-the-guideline range sentence.