* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 7 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs.HECTOR EDUARDO GONZALEZGARCIA, Defendant - Appellant. No. 03-2031 (D.C. No. CR-02-1051 LH) (D.N.M.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and O’BRIEN , Circuit Judges.

Defendant-Appellant Hector Eduardo Gonzalez-Garcia pleaded guilty to one count of illegally reentering the United States after being deported following a conviction for an aggravated felony and 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2). He was sentenced to a term of imprisonmentof forty-one months, followed by three years of supervised release. Mr. Gonzalez-Garcia now appeals, contending the government breached the plea agreeme nt by not supporting his- 2 -

motion for a downward departure and by not making e xpress recommendations at the sentencing hearing. We have jurisdiction pursu ant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

Background Mr. Gonzalez-Garcia was charged with unlawful reentry after previously having been deported from the United States followi ng a conviction for sexual battery. I Aplt. App. 9. The sexual battery convi ction constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43). Mr. Gonzalez- Garcia pled to the indictment. Within the plea agreement, the parties stipulated that Mr. GonzalezGarcia was entitled to a three-level reduction from the base offense level due to acceptance of personal responsibility. I Aplt. App . 33 at 3, ¶ 8. The plea agreement stated “that the adjusted offense Level s hould be twenty-one (21), pursuant to Rule 11(e)(1)(B) of the Federal Rules o f Criminal Procedure.” Id. at 2, ¶ 5. The parties also agreed that “any sentence imposed by [the district court in this case] shall be concurrent with any sentence imposed by the Tulsa County District Court, Tulsa Oklahoma.” Id. In paragraph six, the agreement stated:

6. It is expressly understood and agreed by and be tween the Defendant and the United States that:

(a) The United States has made, and will make, NO AGREEMENT to approve, to oppose, or not to oppose p ursuant to Rule 11(e)(1)(B), Fed. R. Crim. P., any request mad e by the Defendant or on behalf of the Defendant for a parti cular sentence in- 3 -

this case. Id. at 3, ¶ 6. Under the heading “GOVERNMENT’S AGREEM ENT,” the plea agreement stated: Provided that the Defendant fulfills his obligation s as set out above, the United States agrees that it will not bring add itional charges against the Defendant arising out of the Defendant’ s conduct now known to the United States Attorney’s Office for th e District of New Mexico, and to recommend the Defendant receive the minimum possible sentence under the United States Sentencin g Guidelines

. Id. at 4-5, ¶ 10 (emphasis added). Pursuant to this p lea agreement, Mr. GonzalezGarcia pleaded guilty to the indictment before a ma gistrate judge. I Aplt. App. Supp. at 13-14. The presentence report (“PSR”) indicated a total offense level of twentyone and a criminal history category of II. II Aplt . App. at 7. The PSR set forth a recommended guideline range of 41-51 months. Id. The PSR also included the government’s recommendation regarding Mr. Gonzalez- Garcia’s sentence: The defendant stipulated to an offense level of twe nty-one pursuant to 11(e)(1)(B). Without this plea agreement and it s downward adjustments, the offense level would have been 24. An offense level of 24 and a criminal history category of II, establ ishes a guideline imprisonment range of 57-71 months. In addition, the Government will recommend that the defendant receive the minim um possible sentence under the guidelines

. Id. at 8 (emphasis added). Prior to sentencing, Mr. Gonzalez-Garcia filed a mo tion for downward departure under U.S.S.G. § 5K2.0. See I Aplt. App. 35, 36. That section- 4 -

provides that the sentencing court “may impose a se ntence outside the range established by the applicable guidelines, if the co urt finds ‘that there exists an aggravating or mitigating circumstance of a kind, o r to a degree, not adequately taken into consideration by the Sentencing Commissi on in formulating the guidelines that should result in a sentence differe nt from that described.’” U.S.S.G. § 5K2.0(a) (quoting 18 U.S.C. § 3553(b)). Mr. Gonzalez-Garcia argued a downward departure was warranted based on the extreme hardship the proposed guidelines would cause due to his family responsibi lities and severe diabetes. I Aplt. App. 36 at 2-3. He provided numerous letters to the court from his family in support of his motion. See Aplt. Addendum. In an addendum to the PSR, the probation officer concluded “it does not appear [Mr . Gonzalez-Garcia’s] family responsibilities are sufficient or extraordinary to meet the criteria for downward departure.” II Aplt. App., Addendum at 2. At the sentencing hearing, Mr. Gonzales-Garcia’s co unsel noted that it was his understanding that the government “takes no pos ition” with respect to the motion for downward departure. III Aplt. App. at 4 . The government remained silent at the sentencing and did not verbalize its recommendation that Mr. Gonzalez-Garcia receive the minimum possible senten ce under the guidelines. Mr. Gonzalez-Garcia did not object to the government’s failure to support his motion for a downward departure or verbalize its re commendation. The court- 5 -

made no specific mention of the government’s recomm endation, although the court did adopt the presentence report’s factual fi ndings and guideline applications. Id. at 9. The court denied Mr. Gonzalez-Garcia’s moti on for a downward departure, and he was sentenced to a term of forty-one months imprisonment, the lowest sentence in the guideline range recommended in the presentence report. Id.

Discussion Mr. Gonzalez-Garcia argues the government violated the plea agreement by failing to recommend the lowest possible sentence, including support for his downward departure motion, and failing to make the recommendation expressly. “A claim that the government has breached a plea ag reement is a question of law we review de novo, even where, as here, the defenda nt failed to object at the time of the alleged breach.” United States v. Werner , 317 F.3d 1168, 1169 (10th Cir. 2003); see also United States v. Guzman , 318 F.3d 1191, 1195 (10th Cir. 2003); United States v. Peterson , 225 F.3d 1167, 1170 (10th Cir. 2000). Where the government obtains a guilty plea that “re sts 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 promi se must be fulfilled” to maintain the integrity of the plea. Santobello v. New York , 404 U.S. 257, 262- 6 -

(1971); see also Werner , 317 F.3d at 1170; United States v. Brye , 146 F.3d 1207, 1210 (10th Cir. 1998) (“Because a government that l ives up to its commitments is the essence of liberty under law, the harm generate d by allowing the government to forego its plea bargain obligations is one whichcannot be tolerated.”) (internal quotation marks and citations omitted). Because pl ea agreements are contracts, we are guided by general principles of contract law when analyzing the government’s obligations under a plea agreement. S ee Guzman , 318 F.3d at 1195-96; Brye , 146 F.3d at 1210. “Thus, in assessing whether th e government has breached the agreement, we look first to the express terms of the agreement, and if applicable, we construe any ambiguities agai nst the government as the drafter of the agreement.” Werner , 317 F.3d at 1170; see also Guzman , 318 F.3d at 1195; Brye , 146 F.3d at 1210. We apply a two-step process to determine whether a breach has, in fact, occurred: “(1) we ex amine the nature of the government’s promise; and (2) we evaluate this prom ise in light of the defendant’s reasonable understanding of the promise at the time the guilty plea was entered.” Brye , 146 F.3d at 1210. A. Support of Downward Departure Motion The express language of the plea agreement guides u s in determining the nature of the government’s promise. The plea agree ment included an agreement on the part of the government to “recommend the Def endant receive the minimum- 7 -

possible sentence under the United States Sentencin g Guidelines.” I Aplt. App. 33 at 5, ¶ 10. Mr. Gonzalez-Garcia argues that the government’s agreement to “recommend the Defendant receive the minimum possib le sentence under the United States Sentencing Guidelines” obligated the government “at the very least . . . to note that it recommended the granting of t he sought-after downward departure, as long as it was permissible under the Guidelines.” Aplt. Br. at 21. The government, however, argues that this language only obligated the government to recommend the lowest sentence possibl e within the applicable guideline range. Mr. Gonzalez-Garcia argues that the reference to th e “United States Sentencing Guidelines” includes the downward departure provisions upon which he relied in his downward departure motion. He the refore contends the minimum possible sentence under the guidelines includes the minimum possible sentence under all the downward departure provisions. Mr. G onzalez-Garcia thus interprets this provision to obligate the government to recommend all legally supportable downward departures. While it is true the government has used the phrase “the low end of the applicable guideline ran ge” to describe its obligations regarding a sentence recommendation in other instan ces, see, e.g. , United States
v. Werner , 317 F.3d 1168, 1169 (10th Cir. 2003); United Stat es v. Myers , 32 F.3d 411, 412 (9th Cir. 1994), an analysis of the langua ge used in this instance cuts- 8 -

both ways. See United States v. De la Fuente , 8 F.3d 1333, 1338-39 (9th Cir. 1993). The government used broader language in thi s agreement, and therefore arguably the phrase required the government to do m ore than merely recommend a sentence at the low end of the guideline range. Ho wever, the phrase “minimum possible sentence under the United States Sentencin g Guidelines” is a very inexact and unclear way for the government to commi t its support for a downward departure. When the government has agreed to suppo rt a downward departure, it has stated its obligation to do so. See United States v. Vargas , 925 F.2d 1260, 1266 & n.6 (10th Cir. 1991) (discussing government’ s obligation under the language of plea agreement, which stated “If the go vernment, in its sole and absolute discretion, so determines that such cooper ation is in fact substantial assistance, the Government will move for departure pursuant to § 5K1.1 . . . .”); see also United States v. Huang , 178 F.3d 184, 187 n.2 (3d Cir. 1999). The defendant’s interpretation of the government’s responsibilities under the plea agreement is directly at odds with the nat ure of the downward departure provisions. Departures from the guidelines are onl y appropriate in “unusual” and “atypical” cases that depart from the “heartland” o f cases the guidelines cover.
See U.S.S.G., ch. 1, pt. A(4)(b) (Departures). Downwar d departures are the exception rather than the rule. See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21,- 9 -

117 Stat. 650, 675 (directing Sentencing Commissionto review the current grounds for downward departures and promulgate appr opriate amendments “to ensure that the incidence of downward departures ar e substantially reduced”). In particular, family circumstances departures are dis favored under the guidelines, and a district court may depart “only if the factoris present to an exceptional degree or in some other way makes the case differen t from the ordinary case where the factor is present.” United States v. Rey es-Rodriguez , 344 F.3d 1071, 1073 (10th Cir. 2003) (quoting United States v. Gau vin , 173 F.3d 798, 807 (10th Cir. 1999)). The use of downward departures has co me under even more scrutiny with the enactment of the PROTECT Act, which has ra ised the standard of review in sentencing-departure cases from a “unitary abuse of discretion standard” to application of a de novo standard of review. Unite d States v. Jones , 332 F.3d 1294, 1299 (10th Cir. 2003). It would be antitheti cal to this policy to require the government to support all permissible downward departures whenever the language is arguably ambiguous with regard to the g overnment’s obligations. We will not read in such an obligation on the part of the government where there is not clear language to support such a conclusion. Even if we ignore this strong policy consideration and assume that the phrase “minimum possible sentence under the United States Sentencing Guidelines” creates ambiguity regarding the governm ent’s obligation, we need not- 10 -

apply the rule that ambiguities in the plea agreeme nt must be construed against its drafter–in this case the government. United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996). Any arguable ambiguity as a resu lt of this language is resolved by the remainder of the agreement. Effect must be given to every provision of an agreement, see Parker v. United States , 448 F.2d 793, 797 (10th Cir. 1971), and it must be construed as a whole, see FDIC v. Canfield , 967 F.2d 443, 446 (10th Cir. 1992). A construction of paragraph ten that requir es the government to support downward departure motions not included in the pleaagreement would render paragraph six meaningless. We will not construe th e language of the agreement “in a way that renders words or phrases meaningless , redundant, or superfluous.”
See Bridger Coal Co./Pacific Minerals, Inc. v. Dir., O ffice of Workers’ Comp. Programs , 927 F.2d 1150, 1153 (10th Cir. 1991). Rather, “[ i]t is a cardinal rule of construction . . . that effect should be given, if possible, to every word, phrase, clause, and sentence.” Salt Lake County v. Utah Co pper Co. , 93 F.2d 127, 133 (10th Cir. 1937). Paragraph six of the plea agreement states that the government made “NO AGREEMENT to approve, to oppose, or not to oppose . . . any request made by the Defendant . . . for a particular sentence in th is case.” I Aplt. App. 33 at 3, ¶ 6. If the government’s obligation to recommend the “minimum possible sentence” included support for any permissible soug ht-after departures, such an- 11 -

obligation would require the government to support the requests by the defendant for a lower sentence. Such a construction directlycontradicts the language in paragraph six and would render it superfluous. Bec ause we must give meaning to every clause within the plea agreement, we find the government expressly made no agreement to support Mr. Gonzalez-Garcia’s downw ard departure motion. This conclusion is supported by the absence of lang uage regarding a motion for downward departure based on extreme hardship. The parties did include a stipulation in the plea agreement with regard to a downward adjustment for acceptance of personal responsibility. Id. at 3, ¶ 8(a). However, there was no reference to any downward departure motions except to the extent the government made no agreement to support any such motions in paragraph six. Because there is no language regarding the downward departure, th e express language of the agreement does not support Mr. Gonzalez-Garcia’s cl aims. See United States v. Reyes Pena , 216 F.3d 1204, 1212 (10th Cir. 2001). The fact t hat the parties included a paragraph regarding a downward adjustment for acceptance of responsibility and not for a downward departure forextreme hardship suggests there was no such promise on the part of the govern ment to support the downward departure motion. This conclusion is strengthened when the promise is evaluated in light of Mr. Gonzalez-Garcia’s reasonable understanding of the promise at the time the- 12 -

guilty plea was entered. See Brye , 146 F.3d at 1212 (analyzing statements at the plea hearing to evaluate the understanding of the p arties). At the time of the plea hearing, the court inquired into what benefits Mr. Gonzalez-Garcia would receive as a result of entering into the plea agreement. I Aplt. App. Supp. at 8-10. In response, Mr. Gonzalez-Garcia’s counsel stated “The Agreement, is signed as to the defendant, Mr. Gonzalez Garcia’s ability to fil e a motion for downward departure and it allows him to do that. Whether ornot that motion will be granted, he understands it is completely in the dis cretion of the sentencing judge.” Id. at 9. Counsel also noted that the parties agreed that the sentence would be concurrent with any sentence imposed in Oklahoma. Id. When listing the benefits to the defendant, counsel never mentioned that the government would support its motion for a downward departure. Rathe r counsel’s comments illustrate that it was Mr. Gonzalez-Garcia’s unders tanding that the agreement merely allowedfor such a motion. Counsel’s comments at sentencing also shed light onMr. GonzalezGarcia’s understanding of the agreement between the parties. See Brye ,146 F.3d at 1211 (analyzing statements at sentencing to deci pher understanding of promises at the time of the plea). His counsel commented as follows: The normal course of events, Your Honor, as the cou rt knows, in reentry cases, is that the government agrees to an 11(e)(1)(C) sentence of a two-level departure from the guidelin e. The reason they didn’t do it in this case is because where the re has been a–where- 13 -

the aggravated felony is not a drug case but–or a t ransporting case, but it’s a case of violence, that they do not agree to the two-level downward departure, 11(e)(1)(C). But Mr. Tierney a greed [not to do] an 11(e)(1)(C) at a level 21, but to do an 11(e )(1)(B) agreement so that–giving us an opportunity to move the Court for a downward departure, which we did. III Aplt. App. at 4. With regard to the government ’s position, Mr. GonzalezGarcia’s counsel stated “it’s my understanding thatthe government, the United States, takes no positionwith respect to our motion for downward departure. ” Id. at 3-4 (emphasis added). Thus it was counsel’s und erstanding that the government would allow the opportunity for the moti on, but that it took no position with regard to the motion. Counsel did notassert that the government agreed to support any permissible downward departur es in order to achieve the absolute lowest attainable sentence under the guide lines. Counsel’s comments illustrate that Mr. Gonzalez-Garcia’s reasonable un derstanding at the time he entered into the plea was that he had the opportuni ty to make such a motion, but that it would neither be approved nor opposed by th e government. Finally, Mr. Gonzalez-Garcia did not object to the government’s failure to support the downward departure motion at the time o f sentencing. “His failure to object at sentencing is but further evidence that h is expectations of the government were satisfied.” Werner , 317 F.3d at 1170. The government’s agreement to recommend the lowest possible sentence under the sentencing guidelines therefore meant merely that it would rec ommend the lowest possible1 Although when read as a whole we believe the nature of the agreement

between the parties can be deciphered, the language in this agreement is not a model of clarity. Such speculation on appeal over what was intended by the parties at the time the plea agreement was entered into could easily be resolved by more careful lawyering at the time the plea agreeme nts are drafted. We have an “expectation that the government draft plea agreeme nts with particular care and precision to avoid exactly the type of definitional pitfalls we encounter here.” Carnine v. United States , 974 F.2d 924, 928 (7th Cir. 1992). We trust thatthe government will consider our comments and strive to draft more clear and complete plea agreements in the future. - 14 - sentence within the applicable guideline range. Th is understanding perfectly comports with the express language of the plea agre ement, including paragraph six. The government’s promise to recommend the lowest po ssible sentence under the sentencing guidelines did not include an obligation to support the downward departure motion. 1 The government was merely obligated under the agreement to recommend the minimum possible sentenc e within the appropriate guideline range. Because the government was not ob ligated to support Mr. Gonzalez-Garcia’s motion, the government’s failure to support the motion was not a breach of the plea agreement. B. Verbalization of Recommendation At Sentencing H earing Mr. Gonzalez-Garcia also argues the government agre ed to verbalize its recommendation before the court at the sentencing h earing. In United States v. Smith , 140 F.3d 1325, 1327 (10th Cir. 1998), this court clearly stated that “the- 15 -

term ‘recommendation’ in a plea agreement does not require the prosecutor to allocute in favor of specific adjustments in the de fendant’s sentence if the recommendations are contained in the PSR and the pr osecutor does not allocute against an agreed-upon adjustment.” We stated that defendants should be advised that when there is no specific statement in a plea agreement that the government must allocu te in favor of its recommendation(s) at a sentencing hearing, the gove rnment can satisfy the term ‘recommendation’ by having its rec ommendations included in the PSR, which is then called to the attention of the sentencing court. Id. This “straightforward holding” was reaffirmed in Werner , 317 F.3d at 1171. The plea agreement does not require that the govern ment allocute in favor of its recommendation at sentencing. Additionally, the PSR contained the government’s recommendation that Mr. Gonzalez-Garci a receive the minimum possible sentence under the sentencing guidelines, and the plea agreement itself was attached to the PSR. II Aplt. App. at 8. Alth ough the court did not specifically mention the recommendation at sentenci ng, it did adopt the presentence report’s factual findings and guideline applications. III Aplt. App. at 9. Based on these facts and our assumption that th e district judge did not sentence Mr. Gonzalez-Garcia without awareness of the plea agreement, Werner , 317 F.3d at 1170, the government has satisfied its obligation by including its recommendation in the PSR. Mr. Gonzalez-Garcia attempts to distinguish this ca se from Smithand- 16 -

Wernerbased on the fact the recommendation was contingen t on Mr. GonzalezGarcia fulfilling his obligations under the plea, amagistrate rather than the district court judge presided over the plea proceed ings, and the government did not support the downward departure motion. Aplt. B r. at 16-18. However, Smith and Wernerare directly on point. As the court noted in Wern er , the court’s holding in Smithwas clear and factors such as passage of time and the precise language of the agreement were not legally relevant . 317 F.3d at 1170-71. We find the defendant’s attempts to distinguish the ho ldings in this case similarly inapposite. The government’s recommendation was in cluded in the PSR, and it therefore met its obligation under the plea agreeme nt. AFFIRMED. Entered for the Court

Paul J. Kelly, Jr. Circuit Judge