United States v. Julian Salazar

453 F.3d 911, 2006 U.S. App. LEXIS 17477, 2006 WL 1913371
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 13, 2006
Docket05-1673
StatusPublished
Cited by33 cases

This text of 453 F.3d 911 (United States v. Julian Salazar) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Julian Salazar, 453 F.3d 911, 2006 U.S. App. LEXIS 17477, 2006 WL 1913371 (7th Cir. 2006).

Opinion

CUDAHY, Circuit Judge.

Julian Salazar, a leader of the Insane Deuces street gang, pleaded guilty to one count of possessing a firearm, which, as a felon, he may not do. 18 U.S.C. § 922(g) (2006). In exchange for his plea, the government agreed to recommend a sentence at the low end of the applicable range of the federal Sentencing Guidelines, provided that the district court accepted its calculated range of 108 to 120 months’ imprisonment. Salazar argues that the government, in addressing the court, breached that agreement by paying only lip service to its recommendation while characterizing him as a cold-blooded killer willing to do anything to protect the gang. We disagree with Salazar and affirm the judgment of the district court.

The Insane Deuces street gang operates primarily in northern Illinois. In 2002, Salazar and other gang leaders grew suspicious that John Landeros, a gang member who had been caught with four ounces of cocaine but never charged, was a government informant. On September 15, 2002, Salazar and two other gang leaders arrived at another gang member’s house to discuss the situation. Salazar ultimately ordered this gang member to make arrangements to kill Landeros. As it happened, however, Landeros was not working for the government, but — irony of ironies — the member Salazar ordered to kill Landeros was.

As directed, the government informant made preliminary arrangements to kill Landeros and wore a recording device during planning meetings with Salazar. At one meeting (where the recording device failed to work), Salazar instructed the in *913 formant to contact him before killing Landeros so that Salazar could obtain cocaine from the intended victim without paying for it. At a later meeting that was recorded, Salazar told the informant not to worry about killing Landeros because that was Salazar’s “headache” as a leader of the gang. They also discussed whether a .22 caliber pistol would be adequate to kill Landeros. Shortly after this conversation, police arrested Salazar.

A grand jury indicted Salazar on one count of distributing cocaine and one count of being a felon in possession of a firearm. On June 21, 2004, he entered a blind guilty plea on the firearm charge. The government then agreed to drop the cocaine charge, but the parties could not agree on the Guidelines calculation. The government agreed that if the district court accepted its Guidelines calculation, it would seek a sentence at the low end of the Guidelines range. After applying enhancers for conspiracy or solicitation to commit murder and for being the organizer or leader of a criminal activity, the government concluded that the appropriate range fell between 108 and 120 months.

At the sentencing hearing, the government stated:

The Government, pursuant to the agreement reached with defense counsel and the defendant’s plea agreement as has been previously noted to the Court, would recommend that the defendant be sentenced at the low end of that Guideline range, one hundred eight to one hundred twenty. That is an appropriate sentence in this case, your Honor. This is a cold-blooded killer who hires others to go out and kill fellow gang members when he thinks they are cooperating with the police. When he thinks his way of life, the gang life, is in jeopardy. That is the tapes, the tapes make that very, very clear. He casually discusses it without even blinking an eye. That is an appropriate sentence in this case and we urge that you sentence him accordingly.

(R., Sentencing Hr’g 100, Feb. 9, 2005.) The district court accepted the government’s presentation but sentenced Salazar to 120 months — the statutory maximum for the firearms charge. Salazar argues that the government breached its plea agreement; his theory is that, in describing him as a cold-blooded killer, the government effectively urged a higher sentence while paying lip service to the agreed plea.

Salazar argues for the first time on appeal that the government breached its plea agreement. We accordingly review the district court’s judgment for plain error. United States v. Matchopatow, 259 F.3d 847, 851 (7th Cir.2001); United States v. D'Iguillont, 979 F.2d 612, 614 (7th Cir.1992). This standard is remarkably demanding; in order to prevail, Salazar must show: (1) that there was error; (2) that the error was plain or obvious; (3) that the error affected his substantial rights; and (4) that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Sharp, 436 F.3d 730, 734 (7th Cir.2006). In the context of an arguably breached plea agreement, Salazar must show that but for the breach, his sentence would have been different. D'Iguillont, 979 F.2d at 614.

The first step of our analysis is to consider whether the government did in fact breach its plea agreement with Salazar. Since plea agreements are contracts, their content and meaning are determined according to ordinary contract principles. United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir.1992). A substantial breach is required before the government is considered in breach of its plea agreement. *914 United States v. Hauptman, 111 F.3d 48, 51-52 (7th Cir.1997).

It is well settled that the government must fulfill any promises it makes in exchange for a defendant’s guilty plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Matchopatow, 259 F.3d at 851. The terms of these promises, however, will be read according to their natural meaning. United States v. Williams, 198 F.3d 988, 992 (7th Cir.1999). Salazar argues that the government failed to fulfill its promises by only nominally honoring the terms of the agreement while simultaneously making arguments that substantially undercut its sentencing recommendation — all in an attempt to induce the judge to impose a sentence longer than the one agreed to.

We have not earlier had the opportunity to consider the status of a plea agreement in a case like this one. Other circuits faced with similar circumstances have concluded that undercutting a sentencing recommendation may rise to the level of a breach of an agreement. See, e.g., United States v. Vaval, 404 F.3d 144

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Bluebook (online)
453 F.3d 911, 2006 U.S. App. LEXIS 17477, 2006 WL 1913371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-julian-salazar-ca7-2006.