NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

AMBROSIO D. CONSTANTINO, Jr., 

Defendant-Appellant.

No. 17-10173 

D.C. No. 

1:15-cr-00029-FMRG-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Guam

Frances Tydingco-Gatewood, Chief Judge, Presiding

Argued and Submitted August 14, 2018

San Francisco, California

Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.

The decision to offer a defendant a pretrial diversion agreement in a given 

case rests squarely with the prosecutor. See United States v. Edmonson, 792 F.2d 

1492, 1497 (9th Cir. 1986) (explaining that decision-making authority regarding 

the prosecution of cases lies with the Attorney General and his or her delegates). 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

SEP 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-10173 

Here, because the district court exceeded its authority when it rejected such an 

agreement between the government and Ambrosio Constantino and the parties 

agree that we should vacate the judgment and remand this case, we vacate the 

judgment of the district court and remand for further proceedings. 

Constantino was a major in the Guam National Guard. He was indicted on 

two counts arising from his efforts to recruit another individual to the Guam 

National Guard: theft of government property and aggravated identity theft. After 

he was indicted, the government and Constantino intended to enter into a pretrial 

diversion agreement. The agreement provided that, in exchange for Constantino’s 

acceptance of responsibility of the alleged misconduct, the government would 

defer prosecution for twelve months, so long as Constantino complied with the 

agreement’s conditions. The diversion agreement itself was unusual in that it came 

after a formal indictment.1 The district court, however, rejected the parties’ 

agreement, the case proceeded to trial, and a jury convicted Constantino on both 

counts.

 

1 At oral argument, the parties acknowledged that they intended the agreement to 

be a pretrial diversion agreement but that the district court treated it as a deferred 

sentencing agreement. A true pretrial diversion agreement would not require any 

court approval but the government’s entry of an indictment here may have led the 

district court to treat the parties’ agreement as a deferred sentencing agreement. It 

is undisputed that sentencing matters are well within the purview of federal courts. 

See, e.g., United States v. Sherpa, 97 F.3d 1239, 1244–45 (9th Cir. 1996) 

(explaining that sentencing is “the province of the judge” and citing to several 

cases). The apparent confusion the indictment generated appears to have affected 

all of the proceedings below.
3 17-10173 

Following the jury’s verdict, the district court reconsidered its decision to 

reject the “pretrial diversion agreement.” But, after the government represented 

that it no longer intended to offer Constantino the diversion agreement post-trial, 

the district court again reversed course and sentenced Constantino to a term of 

imprisonment of two years and one day, plus a fine and restitution.

On appeal, Constantino argues that the district court violated separation of 

powers principles by rejecting the parties’ pretrial diversion agreement. 

Importantly, the government agrees. “[U]nder our system of separation of powers, 

the decision whether to prosecute, and the decision as to the charge to be filed, 

rests in the discretion of the Attorney General or his delegates, the United States 

Attorneys.” Edmonson, 792 F.2d at 1497. A district court has extremely limited 

authority to inject itself into a true pretrial diversion agreement because it typically 

occurs pre-indictment and does not concern a sentencing matter.

In this case, the district court overstepped its authority by interfering with 

implementation of the parties’ intended pretrial diversion agreement. However, as 

noted above, the confusion appears to stem from the fact that the government filed 

an indictment against Constantino and created the appearance of a deferred 

sentencing agreement instead of the intended pretrial diversion agreement. 

Nevertheless, the district court erred by questioning the U.S. Attorney’s office’s 

policies regarding the use of and criteria for deciding when to offer pretrial 
4 17-10173 

diversion agreements. The district court further erred by questioning the

prosecution’s attempted use of the parties’ agreement here. Because the district 

court based its rejection on reasons unrelated to perceived illegal or unethical 

actions by the prosecution or speedy trial concerns, it exceeded its authority.

We remand to the district court2to allow the parties to be able to enter into 

their original pretrial diversion agreement or otherwise proceed in accordance with 

this disposition.

VACATED and REMANDED.

 

2 Although the government requests that on remand we transfer this case to a 

different judge, having considered the relevant factors for reassignment, we decline 

to reassign this case. See United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 

1979) (detailing the factors courts weigh when determining whether to assign a 

case to a different judge on remand).