UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-30055

Plaintiff-Appellee, D.C. No. 2:19-cr-00111- v. WFN-17 GERARDO FARIAS-CONTRERAS, AKA Tomas Gomez, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted En Banc January 24, 2024 Pasadena, California

Filed June 3, 2024

Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Johnnie B. Rawlinson, Milan D. Smith, Jr., Morgan Christen, Michelle T. Friedland, Mark J. Bennett, Eric D. Miller, Daniel A. Bress, Patrick J. Bumatay and Roopali H. Desai, Circuit Judges. 2 USA V. FARIAS-CONTRERAS

Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Gould; Concurrence by Judge Bennett

SUMMARY *

Criminal Law

The en banc court affirmed a sentence in a case in which the defendant argued that the government breached its promise under the plea agreement not to recommend a sentence in excess of the low-end of the sentencing guidelines range when the government implicitly urged the district court to impose a harsher sentence. Considering the record in toto, a majority of the panel found that the government’s conduct crossed the line from permissible advocacy to an improper end-run of the plea agreement; the government thus implicitly breached its promise not to recommend a sentence in excess of the low- end of the calculated guideline range. The majority concluded, however, that the error was not plain because this court’s precedent does not make sufficiently clear to what extent the government may respond to a defendant’s request for a downward departure without implicitly breaching the plea agreement. The majority took the opportunity to clarify this court’s law on the subject. In cases involving an implicit breach * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. FARIAS-CONTRERAS 3

claim, courts must look first to the plain language of the plea agreement. As long as the agreement does not expressly prohibit the government from responding to a defendant’s request for a sentence lower than what is recommended by the government, the government has the latitude to respond. But the government’s response must be tethered to its obligations under the plea agreement, even when responding to the defendant’s specific request for a downward departure or to the court’s questions. While a prosecutor need not invoke magic words each time he or she argues against mitigation or answers the court’s questions, the government must comply with the letter and spirit of the plea agreement. That is, the government’s arguments must be made in good faith and advance the objectives of the plea agreement. This is a fact-specific inquiry based on contract principles. Courts should look at the totality of circumstances and consider, inter alia, the sequencing, severity, and purpose of the statements. To the extent this court’s precedent can be read to prohibit the government from presenting any information that is already known and contained in the presentence report, the majority rejected such a categorical rule. In cases where the government is entitled to respond to arguments by the defense, repeating facts in the presentence report does not constitute a per se breach. Concurring, Judge Gould, joined by Judges Rawlinson and Desai, joined the majority in full. He wrote separately to add that the conclusion that there was error not