United States v. Brooke Campbell Solis

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2023
• Docket: 22-10070
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10070

Plaintiff-Appellee, D.C. No. 3:21-cr-00297-JD-1

v. MEMORANDUM* BROOKE CAMPBELL SOLIS,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted August 21, 2023** San Francisco, California

Before: BUMATAY, KOH, and DESAI, Circuit Judges.

Brooke Campbell Solis pleaded guilty to six counts of wire fraud in violation

of 18 U.S.C. § 1343. The district court imposed a 37-month sentence. Solis appeals

the district court’s denial of the third point of a three-level sentencing reduction for

acceptance of responsibility under U.S. Sentencing Guidelines (“USSG”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 3E1.1(b). She also alleges that the government breached the plea agreement and

that her sentence was substantively unreasonable. Because Solis did not raise these

issues before the district court, we review for plain error. United States v. Halamek,

5 F.4th 1081, 1087 (9th Cir. 2021); United States v. Whitney, 673 F.3d 965, 970 (9th

Cir. 2012). We vacate Solis’s sentence and remand for resentencing.

1. Under plain error review, the government did not breach the plea

agreement. The plea agreement required the government to recommend a sentence

“within the range associated with the Guidelines calculation set out” in the

agreement. And the government fulfilled its obligations. Solis argues that the

government breached the plea agreement by noting that she had not “shown true

remorse” to the victim; that her justifications to her psychologist were “inconsistent

with true acceptance of responsibility”; that her continued blame of others for her

offenses showed a “failure to take full responsibility for her actions”; and that her

explanation of her offenses was “inconsistent with actual remorse and full

acceptance of responsibility.”

But, “despite a plea agreement to make certain recommendations, the

government has a duty to ensure that the court has complete and accurate

information, enabling the court to impose an appropriate sentence.” United States

v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000). Here, the government’s

statements provided new information to the district court and did not plainly violate

2 the terms of the plea agreement. Cf. United States v. Heredia, 768 F.3d 1220, 1231

(9th Cir. 2014) (no breach of plea agreement when the government “provide[s] the

district judge with . . . new information or correct[s] factual inaccuracies” (quoting

Whitney, 673 F.3d at 971)).

2. The district court plainly erred by denying the additional one-level

reduction requested by Solis on improper grounds. It is uncontested that Solis met

the requirements for a three-level reduction under USSG § 3E1.1(b): (1) the district

court granted her the two-level reduction under § 3E1.1(a); (2) her offense level of

21 was greater than 16; and (3) the government requested in both its sentencing

memorandum and in its reply to Solis’s sentencing memorandum that the district

court grant the third point. When the requirements of this section are met, “the

additional one point reduction in sentence level is mandated.” United States v.

Huckins, 53 F.3d 276, 279 (9th Cir. 1995). The government concedes the district

court cited improper reasons for denying Solis the third point for acceptance of

responsibility.

“A mistake in calculating the recommended Guidelines sentencing range is a

significant procedural error that requires us to remand for resentencing.” United

States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per curiam).

While the government argues that the error was harmless because the district court

mentioned that it was “tempted to go higher,” we are concerned that the district court

3 began from the wrong starting point. See United States v. Doe, 705 F.3d 1134, 1154

(9th Cir. 2013) (holding that the district court’s “failure accurately to state the

Guidelines range at the onset derailed the sentencing proceeding before it even

began”).

3. Because we vacate the sentence and remand for a full resentencing, we do

not reach whether Solis’s sentence was substantively unreasonable.

VACATED and REMANDED.