United States v. Luis Krueger

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 5, 2018
• Docket: 17-50302
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50302

Plaintiff-Appellee, D.C. No. 2:15-cr-00662-ODW-12

v. MEMORANDUM* LUIS KRUEGER, a.k.a. Luis Fernando Vasquez-Alas,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Luis Krueger appeals from the district court’s judgment and challenges the

24-month sentence imposed following his guilty-plea conviction for conspiracy to

launder money instruments, in violation of 18 U.S.C. § 1956(h). We have

* 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). Accordingly, Krueger’s request for oral argument is denied. jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Krueger contends that the district court denied him the right to allocute in

violation of Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) and due process.

The government argues that this claim is covered by the appeal waiver in the

parties’ plea agreement. Because it is not clear that the waiver encompasses this

issue, we address the merits of Krueger’s claim.

The parties disagree as to whether Krueger’s claim should be reviewed for

harmless or plain error. We need not resolve this dispute because, even applying

plain error, we conclude that remand is required. See United States v. Daniels, 760

F.3d 920, 922-23 (9th Cir. 2014).

Krueger began his allocution by apologizing to the district court. The

district court almost immediately interrupted him, stating, “No, no, listen, please,

you are already kind of ahead on points. If you start throwing B.S. up here, things

are going to change.” The record reflects that the district court’s statement, and its

suggestion that it might impose a higher sentence if Krueger continued to speak,

intimidated Krueger and caused him to limit his remarks. Under these

circumstances, we conclude that Krueger was denied his fundamental right to

speak and ask for a lesser sentence. See id. at 926 (right to allocute is

“fundamental to our criminal justice system”); United States v. Sarno, 73 F.3d

1470, 1503 (9th Cir. 1995) (right to allocute was violated where district court’s

2 17-50302 remarks inhibited defendant from “speaking freely”). Moreover, because the

district court could have imposed a lower sentence, the denial was prejudicial. See

Daniels, 760 F.3d at 926. Accordingly, the district court plainly erred, and we

vacate Krueger’s sentence and remand. Further, we grant Krueger’s request that

this matter be reassigned to a different district judge for resentencing.

The government’s motion to strike a portion of Krueger’s excerpts of record

is denied.

VACATED and REMANDED for resentencing.

3 17-50302