FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

URBANO TORRES-GILES, 

Defendant-Appellant.

No. 22-50112 

D.C. No. 

3:22-cr-00224-

LAB-1 

OPINION

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted July 13, 2023

Pasadena, California

Filed August 31, 2023

Before: Gabriel P. Sanchez and Salvador Mendoza, Jr., 

Circuit Judges, and Brian A. Jackson,* District Judge.

Opinion by Judge Sanchez;

Partial Concurrence and Partial Dissent by

Judge Mendoza, Jr.

* The Honorable Brian A. Jackson, United States District Judge for the 

Middle District of Louisiana, sitting by designation.
2 USA V. TORRES-GILES

SUMMARY**

Criminal Law

The panel affirmed a sentence in a case in which Urbano 

Torres-Giles pleaded guilty to attempted reentry following 

removal and entered a Federal Rule of Criminal Procedure 

11(c)(1)(B) plea agreement, known as a “Type B” 

agreement.

Torres-Giles argued that the district court abused its 

discretion by “rejecting” his Type B plea agreement in its 

entirety after imposing sentence for the reentry offense. The 

panel explained that unlike plea agreements under Federal 

Rules of Criminal Procedure 11(c)(1)(A) and (c)(1)(C), no 

corresponding opportunity-to-withdraw language governs 

Type B plea agreements; the defendant has no right to 

withdraw a Type B plea if the court does not follow the 

government’s recommendation or the defendant’s request, 

and a Type B agreement is not binding upon the court. The 

panel held that so long as the defendant is apprised of the 

consequences of entering into a Type B plea agreement and 

accedes to them voluntarily, he has no right to withdraw 

from the agreement on the ground that the court does not 

accept the sentencing recommendation or 

request. Accordingly, the district court’s use of the word 

“reject” in the context of a Type B plea agreement can have 

no legal effect. The panel wrote that the record establishes 

that Torres-Giles was aware of the consequences of entering 

into a Type B plea agreement, and concluded that the district 

** 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. TORRES-GILES 3

court therefore did not abuse its discretion under the 

circumstances.

The same district court judge who sentenced TorresGiles in this case had presided over his prior sentencing 

hearing for illegal reentry. Torres-Giles argued that the 

district court committed procedural error when it used 

Torres-Giles’s alleged promise at his prior sentencing 

hearing not to return to the United States as a sentencing 

factor for the attempted reentry offense without any proof 

such a promise had been made. Reviewing for plain error, 

the panel held that the district court’s factual finding that 

Torres-Giles had assured the court at the prior sentencing 

hearing that he would not return to the United States is 

supported by the record. In addition, the record establishes 

that the broken promise played virtually no role in the district 

court’s sentence for the attempted reentry offense. And even 

if the district court procedurally erred by relying on the 

promise, Torres-Giles did not demonstrate that his 

substantial rights were affected.

Judge Mendoza concurred in part and dissented in 

part. He dissented from the part of the majority opinion 

concerning the district court’s finding of a broken promise.

Applying United States v. Burgos-Ortega, 777 F.3d 

1047 (9th Cir. 2015), which he reads as suggesting correctly 

that a district court’s speculation about statements 

potentially made during a prior hearing is a “clearly 

erroneous fact” that cannot be used as a sentencing factor, 

and reviewing for plain error, he would reverse.
4 USA V. TORRES-GILES

COUNSEL

Adam F. Doyle (argued), Law Office of Adam F. Doyle, San 

Diego, California, for Defendant-Appellant.

David E. Fawcett (argued), Assistant United States 

Attorney; Daniel E. Zipp, Assistant United States Attorney, 

Appellate Section Chief, Criminal Division; Rand S. 

Grossman, United States Attorney; United States Attorney’s 

Office, San Diego, California; Mikaela Weber, Solomon 

Ward Seidenwurm & Smith LLP, San Diego, California; for 

Plaintiff-Appellee.

OPINION

SANCHEZ, Circuit Judge: 

Urbano Torres-Giles appeals his sentence of twentyseven months’ imprisonment followed by three years’ 

supervised release for attempted reentry following removal 

in violation of 8 U.S.C. § 1326. At the time of his attempted 

reentry, Torres-Giles had been deported from the United 

States six times, most recently about a month before his 

arrest. The same district court judge who sentenced TorresGiles in this case had presided over his prior sentencing 

hearing for illegal reentry. 

On appeal, Torres-Giles raises two challenges to the 

court’s sentence. First, he contends that the district court 

abused its discretion by rejecting his Federal Rule of 

Criminal Procedure 11(c)(1)(B) plea agreement in its 

entirety after imposing sentence for the reentry offense. 

Second, Torres-Giles argues that the district court erred by 
USA V. TORRES-GILES 5

considering an alleged assurance he made at his prior 

sentencing hearing that he would not return to the United 

States. We affirm. 

I.

Torres-Giles is a native and citizen of Mexico with a 

substantial criminal immigration history. He was convicted 

of illegal reentry and deported six times. In 2009, he was 

convicted of illegal reentry and deported in April 2010 after 

serving a six-month sentence. He was arrested again two

weeks later, convicted of illegal reentry, and served a 90-day 

sentence. In 2018, Torres-Giles was detained by 

immigration officials following his arrest for a domestic 

violence incident.

1 He was convicted of illegal reentry and 

sentenced in 2019 to a six-month term.

2 He was arrested 

again in 2019 for illegal reentry and sentenced to a twentyone-month term in the Southern District of California.

Torres-Giles was deported in December 2021. He remained 

in Tijuana, Mexico for approximately one month before he 

attempted to reenter the United States and was arrested 

again. 

When Torres-Giles was arrested on January 10, 2022, for 

the present offense, he was on supervised release from the 

two prior criminal immigration cases. The government filed 

a one-count information charging Torres-Giles with 

attempted reentry of a removed alien in violation of § 1326,

along with notice relating it to the two prior cases with 

1 Torres-Giles was also convicted in the United States of felony 

aggravated assault in 2005, misdemeanor domestic violence in 2009, and 

driving under the influence in 2004 and 2017. 

2 This case originally proceeded in the Central District of California but 

was transferred to the Southern District of California.
6 USA V. TORRES-GILES

pending terms of supervised release. The case was 

transferred to the same district court judge who had presided 

over Torres-Giles’s prior cases. 

Torres-Giles entered a Rule 11(c)(1)(B) plea agreement, 

known as a “Type B” agreement, setting forth a global 

resolution for the three cases. The plea agreement proposed

fast-track departure for the most recent § 1326 reentry 

offense. When Torres-Giles appeared for his entry of guilty 

plea, the magistrate judge completed a Rule 11 colloquy

advising Torres-Giles that his plea agreement was not 

binding on the district court and that he could be sentenced 

to a higher or lower sentence than the recommendation in the 

plea agreement. Torres-Giles stated that he understood. 

At the sentencing hearing, the district court began with 

Torres-Giles’s most recent offense of attempted reentry. 

The court confirmed with defense counsel that Torres-Giles 

had appeared before him at the last sentencing hearing and 

then asked whether counsel had reviewed the sentencing 

transcript from the previous hearing. The following 

exchange transpired:

DEFENSE COUNSEL: I did not take a look 

at the transcript, but I certainly remember 

most of it. 

THE COURT: What did he tell me about 

whether he would remain out of the United 

States? Because he had been convicted 

multiple times of coming into the United 

States illegally before he was sentenced last 

time. What do you recall him telling me 

about whether he would remain out? 
USA V. TORRES-GILES 7

DEFENSE COUNSEL: I believe the Court 

inquired as to that, and Mr. Torres said that -

- I don’t know his exact words, but he would 

certainly do his best to remain out of the 

country. 

THE COURT: Right. And his mother’s 

condition, as you point out, was kind of front 

and center even then, right? 

DEFENSE COUNSEL: That is correct, Your 

Honor. 

THE COURT: So that was known, that was 

discussed, and I sought from him an 

assurance that he would stay out, and he gave 

me that assurance? 

DEFENSE COUNSEL: That’s my 

recollection. I don’t have the transcript in 

front of me. 

The court observed that Torres-Giles had been convicted of 

several violent felonies, including an assault with a deadly 

weapon, another violent offense that involved kicking 

someone in the head, and a domestic violence conviction, 

and had a significant criminal immigration history, including 

six deportations. 

After Torres-Giles allocuted, promising that he would 

“never set foot again in this country,” the court asked him 

whether he remembered making a prior promise not to 

return: “[D]o you remember telling me words to that effect 

last time, that you would not come back again? Do you 

remember saying that to me when you were here before in 

2019?” Torres-Giles stated he did not. 
8 USA V. TORRES-GILES

After hearing argument from counsel, the court rejected 

the parties’ joint recommendation for fast-track departure. 

The court discussed the sentencing factors under 18 U.S.C. 

§ 3553(a), including the nature of the offense, Torres-Giles’s 

history and characteristics, and the need for deterrence and 

to promote respect for the law. The court sentenced TorresGiles to the upper-end of the guideline range, twenty-seven 

months.

The parties informed the court that Torres-Giles’s plea 

agreement included a right of appeal should the court reject 

fast-track departure. The court stated that if the plea 

agreement depended on the court going along with a fasttrack concession it believed to be unjustified, it rejected the

plea agreement. Defense counsel asked for clarification: 

“are you rejecting the plea agreement in its entirety or just 

declining to impose the fast-track departure?” The court 

stated: “I’m not going to put my imprimatur on an agreement 

like that. . . . I reject the plea agreement.”

The court then turned to the two supervised release cases

and found that Torres-Giles violated the conditions that he 

not return to the United States or violate the laws of the 

United States. The court noted that in this context, it was 

permitted to consider the nature of the breach of the trust 

which it found was explicit and clear. The court stated that 

when Torres-Giles was sentenced in May 2020, the court 

said, “don’t come back anymore,” and “you then promised 

me, according to your lawyer, that you wouldn’t come back 

again, and yet what? A month and a half of getting out of jail 

for that, you came right back.” Torres-Giles repeated that he 

appeared on video but was not able to speak to the court at 

that hearing. The court stated that was not true because his 

lawyer remembered otherwise, and the court would not have 
USA V. TORRES-GILES 9

gone forward with sentencing if Torres-Giles had not been 

able to say anything.

In light of Torres-Giles’s attempt to reenter so soon after 

his most recent deportation as well as breaking his promise 

that he would not return, the court imposed a consecutive 

twenty-four-month term for his more recent supervised

release case, and a sentence of time-served in the older 

supervised release case. Torres-Giles was thus sentenced to

an aggregate term of fifty-one months. This timely appeal 

followed. 

II.

We review a district court’s sentencing decision for 

abuse of discretion. United States v. Brown, 42 F.4th 1142, 

1145 (9th Cir. 2022); see also United States v. Carty, 520 

F.3d 984, 993 (9th Cir. 2008) (en banc). Plain error review, 

however, applies to unpreserved claims of procedural error. 

United States v. Ferguson, 8 F.4th 1143, 1145 (9th Cir. 

2021); see also United States v. Quintero-Junco, 754 F.3d 

746, 749 (9th Cir. 2014). “To establish plain error, a 

defendant must show ‘(1) error, (2) that is plain, (3) that 

affected substantial rights, and (4) that seriously affected the 

fairness, integrity or public reputation of the judicial 

proceedings.’” Ferguson, 8 F.4th at 1145–46 (quoting 

United States v. Borowy, 595 F.3d 1045, 1049 (9th Cir. 

2010)). 

Torres-Giles first contends the district court abused its 

discretion by “rejecting” the plea agreement in its entirety

after imposing sentence for the reentry offense. We disagree

because the court’s “rejection” of a Type B plea agreement 

does not transform it into a binding agreement or otherwise

allow the defendant to withdraw from the plea. 
10 USA V. TORRES-GILES

We recently held that a district court’s purported

“rejection” of a Type B plea agreement at sentencing had no 

legal effect. See United States v. Montoya, 48 F.4th 1028, 

1033–34 (9th Cir. 2022), vacated for reh’g en banc on other 

grounds, 54 F.4th 1168 (9th Cir. 2022). A close review of 

the text of Rule 11 supports this conclusion. Rule 

11(c)(1)(A) and (c)(1)(C) require the court to “give the 

defendant an opportunity to withdraw the plea” if the court 

rejects a plea agreement entered under these provisions. 

Fed. R. Crim. P. 11(c)(5)(B). But no corresponding 

opportunity-to-withdraw language governs Type B plea 

agreements. See id. Rather, the text of Rule 11(c)(1)(B) 

provides that if the defendant pleads guilty, the government 

will “recommend, or agree not to oppose the defendant’s 

request, that a particular sentence or sentencing range is 

appropriate or that a particular provision of the Sentencing 

Guidelines, or policy statement, or sentencing factor does or 

does not apply,” though “such a recommendation or request 

does not bind the court.” Fed. R. Crim. P. 11(c)(1)(B). 

“[T]he defendant has no right to withdraw the [Type B] plea 

if the court does not follow the recommendation or request.” 

Fed. R. Crim. P. 11(c)(3)(B); see also Fed. R. Crim. P. 11 

advisory committee’s note to 1979 amendment (providing 

that a Type B agreement is “clearly of a different order” than 

the Type A or C agreement as a Type B plea is an “agreement 

to recommend” that “is discharged when the prosecutor 

performs as he agreed to do” and is “not binding upon the 

court”). 

“Traditional canons of statutory construction suggest 

that this omission was meaningful.” Briseno v. ConAgra 

Foods, Inc., 844 F.3d 1121, 1125 (9th Cir. 2017). We 

presume that the Rules drafters acted “intentionally and 

purposely” by omitting the right to withdraw only from Type
USA V. TORRES-GILES 11

B agreements. Russello v. United States, 464 U.S. 16, 23

(1983). So long as the defendant is fairly apprised of the 

consequences of entering into a Type B plea agreement and 

accedes to them voluntarily, he has no right to withdraw 

from the agreement on the ground that the court does not 

accept the sentencing recommendation or request. Fed. R. 

Crim. P. 11(c)(3)(B). Accordingly, the district court’s use 

of the word “reject” in the context of a Type B plea 

agreement can have no legal effect. 

The record establishes that Torres-Giles was aware of the 

consequences of entering into a Type B plea agreement. In 

his Rule 11 colloquy before the magistrate judge, TorresGiles acknowledged that his Type B agreement was nonbinding and that the district court judge could sentence him 

to a higher or lower sentence than the one in the plea 

agreement. The plea agreement that he signed also stated the 

court was free to reject the sentencing recommendation. 

That the district court purportedly “rejected” the plea 

agreement cannot transform his non-binding Type B plea 

agreement into a binding Type A or Type C plea agreement. 

We conclude that the district court did not abuse its 

discretion under the circumstances. 

III.

Torres-Giles next argues the district court committed 

procedural error when it used his alleged promise not to 

return to the United States as a sentencing factor for the 

§ 1326 reentry offense without any proof such a promise had 

been made. Because Torres-Giles did not raise this 

procedural objection in the district court, we review it for 
12 USA V. TORRES-GILES

plain error. Ferguson, 8 F.4th at 1145.3 We conclude that 

Torres-Giles has not established any error by the district 

court, much less error that affected his substantial rights. 

A district court procedurally errs at sentencing if it 

imposes a sentence based on “clearly erroneous facts.” 

United States v. Burgos-Ortega, 777 F.3d 1047, 1056 (9th 

Cir. 2015) (quoting Carty, 520 F.3d at 993)). A finding is 

clearly erroneous if it is illogical, implausible, or without 

support in the record.” Id. (quoting United States v. Graf, 

610 F.3d 1148, 1157 (9th Cir. 2010)). The district court’s 

finding that Torres-Giles had assured the court at his May 

2020 sentencing hearing that he would not return to the 

United States is supported by the record. 

Defense counsel confirmed his client’s promise not to 

return to the United States. Specifically, counsel confirmed 

that while he had not read the transcript from the prior 

sentencing hearing, he “certainly remember[ed] most of it” 

and recalled that “Mr. Torres said that—I don’t know his 

exact words, but he would certainly do his best to remain out 

of the country.” Defense counsel’s recollection aligned with 

the district court’s own recollection of what occurred at the 

hearing. The district court judge also explained his practice 

of allowing defendants to speak at sentencing and rejected

Torres-Giles’s assertion that he was not given the 

opportunity to speak by video. Although Torres-Giles 

contends he never made such a promise, he has not presented 

a transcript of the prior hearing or otherwise directed this 

court to any portion of the record that might support his 

3 Even if we were to review the claim under an abuse of discretion 

standard, as Torres-Giles suggests, we would arrive at the same 

conclusion and find no abuse of discretion. 
USA V. TORRES-GILES 13

claim. Torres-Giles has not demonstrated clear error in the 

district court’s finding of a broken promise.

Our dissenting colleague characterizes the district court 

and defense counsel’s recollection of the May 2020 hearing 

as “flawed” and “equivocal,” but the record belies these 

descriptions. Even without a transcript, defense counsel 

stated he “certainly remember[ed] most of it,” including that 

the defendant had assured the court he would remain outside 

the United States, and the district court clearly recalled the 

same exchange along with other details from the prior 

hearing. Defendant’s bare assertion that he was not allowed 

to speak was rejected by the court given its practice of 

allowing each defendant to speak at sentencing. This is a 

quintessential factual dispute. Our review for clear error 

does not permit us to pick and choose who we find more 

believable, and the record plainly supports the district 

court’s finding that Torres-Giles made such a promise.4 

The record also establishes that the broken promise 

played virtually no role in the district court’s sentence for the

§ 1326 offense. The court discussed at length Torres-Giles’s

4 The dissent selectively quotes one instance where the district court 

judge stated, “I don’t remember exactly,” while omitting the rest of the 

sentence: “I don't remember exactly, but I would not have gone forward 

if you could not have spoken to me over the video conference because 

you have an absolute right to speak at sentencing.”

A fair reading of the transcript does not indicate that the judge was 

equivocal in recalling the prior hearing. For example, the court stated at 

a later point: “All right. Mr. Torres, you have a right again to speak. The 

issue this time is when I sentenced you in May of 2020, two years ago, I 

said, ‘Look, don’t come back anymore. Go in peace.’ ... You then 

promised me, according to your lawyer, that you wouldn’t come back 

again, and, yet, what? A month and a half of getting out of jail for that, 

you came right back.”
14 USA V. TORRES-GILES

recidivism, multiple felony convictions, prior violence, and 

significant criminal immigration history, emphasizing the 

need for deterrence, just punishment, and promoting respect 

for the law. After the court pronounced sentence of twentyseven months’ custody, the court referenced the broken 

promise again, doing so to warn Torres-Giles of the 

consequences he would face if he returned to the United 

States.

5 

Even if the district court procedurally erred by relying on 

the alleged promise, Torres-Giles has not demonstrated that 

his substantial rights were affected. He does not challenge 

the district court’s reliance on other § 3553(a) sentencing 

factors to impose sentence on the § 1326 conviction. At 

most, the court’s discussion of a broken promise was nested 

within a broader balancing of several sentencing factors that 

are amply supported by the record, and Torres-Giles has not 

shown that his sentence would have differed had the court 

declined to consider his prior statement. 

AFFIRMED.

5 An extended back-and-forth about the broken promise took place 

during the portion of sentencing that addressed the supervised release 

cases. Torres-Giles does not challenge the district court’s authority to 

consider a breach of trust in determining the appropriate sentence for 

violating a term of supervised release. 
USA V. TORRES-GILES 15

MENDOZA, Circuit Judge, concurring in part and 

dissenting in part: 

The district court imposed a criminal sentence based on 

a fact that the defendant disputed, that the court could not 

recall, and that was not supported by any evidence in the 

record. I thus dissent from Part III of the Court’s opinion.1

 

Imposing a prison sentence based on guesswork is 

unacceptable, especially when the defendant is in the 

courtroom saying that the judge has guessed wrong. 

I.

This fact pattern is not new. In United States v. BurgosOrtega, 777 F.3d 1047 (9th Cir. 2015), the defendant pled 

guilty to attempted reentry in violation of 8 U.S.C. § 1326. 

The parties requested a 24-month sentence based, in part, on 

Mr. Burgos-Ortega’s representation that he had no reason to 

return to the United States, having reestablished contact with 

his children who planned to continue their relationship with 

him and visit him in Mexico. Id. at 1050. However, the 

district court imposed an above-Guidelines sentence, stating: 

Now I have reviewed this file pretty carefully 

because I knew I was going to vary up. And 

I’ve heard the reasons for coming back into 

the United States. I’d be willing to bet you 

dollars to donuts that if I went and I got a 

transcript of the proceedings of his previous 

1326’s, he probably had a good excuse for 

coming back into the United States. Now I 

don’t have those transcripts. But, you know, 

I do enough of these every Monday, I 

1 I join Parts I–II.
16 USA V. TORRES-GILES

probably do more sentencings than many, 

many districts combined. And I hear it all the 

time. There is always, you know, reason to 

come back. They want to be with their family 

or what have you. And the story never 

changes in the sense that they come back. 

Id. Defense counsel responded that because Mr. BurgosOrtega had satisfied his reason for returning to the United 

States—to reunite with his children—he was unlikely to 

reoffend. Id. at 1051. The district court dismissed this 

argument as “just not very credible.” Id.

On appeal, Mr. Burgos-Ortega argued that “the district

court improperly speculated that he had offered good reasons 

for his prior two illegal re-entries when it rejected BurgosOrtega’s contention that he had no reason for returning to the 

United States in the future.” Id. at 1056. We rejected that 

argument, but not because we condone criminal sentences 

based on speculation. Rather, we held “the district court’s 

comments played no role in its determination of an 

appropriate sentence. The court expressly recognized that it 

did not have the transcripts from the earlier hearings before 

it and the court stated that, in its view, Burgos-Ortega’s 

reasons for an illegal re-entry were irrelevant.” Id. at 1056. 

I read Burgos-Ortega as suggesting, correctly, that a 

district court’s speculation about statements potentially 

made during a prior hearing is a “clearly erroneous fact” that 

cannot be used as a sentencing factor. Id. at 1056. Applying 

that rule here, and reviewing for plain error, I would reverse.

II.

The court’s finding of a broken promise is clearly 

erroneous because it is “without support in inferences that 
USA V. TORRES-GILES 17

may be drawn from the facts in the record.” United States v. 

Valle, 940 F.3d 473, 478 (9th Cir. 2019) (emphasis added) 

(quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th 

Cir. 2009) (en banc)). Mr. Torres-Giles expressly denied 

making the promise or entering “a trust relationship,” as the 

judge described it, to which the judge conceded “I don’t 

remember exactly.” Yet he doubted Mr. Torres-Giles, 

saying: 

I don’t think it’s true. I think you’re 

misrecollecting when you say you didn’t get 

an opportunity to speak or you didn’t say 

anything. Your lawyer remembers 

otherwise, and my practice would have 

forbidden going forward if you couldn’t have 

communicated with me via video.

Here, as in Burgos-Ortega, the district judge may have had 

insights and intuition about Mr. Torres-Giles’s prior 

statements, but he did not have the transcripts from the 

earlier hearings, nor the confirmed facts. There also is 

nothing in the Criminal History Report confirming this 

flawed and disputed memory. “A merely speculative logic 

cannot displace the need for evidence on such an issue, 

which cannot be decided by assumption or inference not 

based on fact.” United States v. Jordan, 291 F.3d 1091, 1099 

(9th Cir. 2002). 

The majority is wrong to rest on defense counsel’s 

equivocal assent to the district judge’s questioning about Mr. 

Torres-Giles’s alleged promise. My colleagues say that 

defense counsel “certainly remember[ed] most” of the prior 

hearing. But that does not mean, and the record does not 

show, that he remembered Mr. Torres-Giles making a 
18 USA V. TORRES-GILES

promise and entering “a trust relationship” with the court.2 

In fact, defense counsel told the court “I don’t know his exact 

words.” Then, when asked whether his client made an 

assurance, he said: “That’s my recollection. I don’t have the 

transcript in front of me.” In other words, “I’m not sure.” 

Two flawed memories cannot equal a confirmed fact. 

Moreover, the attorney-client relationship “is a 

quintessential principal-agent relationship” where “the client 

retains ultimate dominion and control over the underlying 

claim.” C.I.R. v. Banks, 543 U.S. 426, 436 (2005). Mr. 

Torres-Giles exercised that control by correcting his lawyer. 

Unlike trial management decisions, which are “the lawyer’s 

province,” the decision to admit or deny an aggravating 

sentencing factor is of the kind “reserved for the client.” 

McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018) (noting 

the client ultimately decides things like whether to “plead 

guilty,” “testify in one’s own behalf,” and “assert 

innocence”). The sentencing court should not have relied on 

the attorney’s uncertain memory given Mr. Torres-Giles’s 

statement that his attorney was wrong; that “I didn’t say 

those things.” 

The majority also faults Mr. Torres-Giles for not 

presenting a transcript from the prior hearing or other 

evidence to support his claim. But that is not his burden. A 

sentencing court may not assume an aggravating factor and 

require the defendant to disprove it. See United States v. 

Flores, 725 F.3d 1028, 1041 (9th Cir. 2013) (noting the 

2 The district judge said he considered the attempted reentry a “breach of 

trust” materially different than an ordinary violation of supervised 

release, which he did not view as “a trust relationship.” See infra Part 

III.
USA V. TORRES-GILES 19

government bears the burden of establishing the factual 

underpinnings for imposing a sentencing enhancement). 

The majority says in closing that we may not “pick and 

choose who we find more believable.” Agreed, but neither 

may the district court when its own memory of events is 

foggy. A sentencing court cannot enhance a criminal 

sentence through a credibility contest of unsworn 

statements; by crediting its own speculation over the 

defendant’s version of the facts. A judge’s insights and 

intuition are not enough. See Jordan, 291 F.3d at 1098. 

Rather, the factual dispute must be resolved on “the facts in 

the record.” Valle, 940 F.3d at 478 (quoting Hinkson, 585 

F.3d at 1262). This record shows only that between the 

judge, the lawyer, and the defendant, just one person was 

certain their memory was correct: Mr. Torres-Giles. 

III.

The district court’s error affected Mr. Torres-Giles’s 

substantial rights because the record shows “a reasonable 

probability that, but for the error, the outcome of the 

proceeding would have been different.” Rosales-Mireles v. 

United States, 138 S. Ct. 1897, 1904–05 (2018) (quoting 

Molina-Martinez v. United States, 578 U.S. 189, 194 

(2016)). The district judge explained that he viewed Mr. 

Torres-Giles’s circumstances as “different” and 

“aggravated” because of the broken promise. He said, “I did 

think that we had a meeting of the minds when he promised 

me that he wouldn’t come back.” He also considered the 

attempted reentry a “breach of trust” materially different 

than an ordinary violation of supervised release, which he 

did not view as “a trust relationship.” Before imposing a 
20 USA V. TORRES-GILES

sentence above the parties’ joint recommendation, the judge 

said:

Mr. Torres, I’m not going to elicit a promise 

from you this time because your word has 

proved not to be really good. You promised 

me last time you wouldn’t come back and, 

yet, you did. But I am going to tell you that 

if you do come back again, I’ll give you a 

promise, you’re going to face a sanction. 

Whatever the government does, you’re going 

to face a sanction on this case if you come 

back in the next three years. 

On this record, it is easy to conclude that there is a 

“reasonable probability” the court would not have sentenced 

Mr. Torres-Giles so harshly—above even the government’s 

recommendation—had it not relied on this erroneous fact. 

Rosales-Mireles, 138 S. Ct. at 1905. 

We must correct this error. The majority says that “the 

broken promise played virtually no role in the district court’s 

sentence for the § 1326 offense.” But that, too, is 

speculation. We have no way of knowing the extent to 

which the erroneous finding affected the sentence. 

Regardless, any role is too great. I can think of few things 

more damaging to “the fairness, integrity, and public 

reputation of judicial proceedings” than imposing a prison 

sentence based on a disputed factual finding that has no 

support in the record. Id. at 1911. 

I respectfully dissent.