United States v. Araguz-Briones

United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-40937
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO JAVIER ARAGUZ-BRIONES,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 1:04-CR-201-ALL
______________________________
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Francisco Araguz-Briones appeals his sen-
tence, claiming that the government failed to
perform its contractual obligation to move for
a one-level downward departure. We vacate
and remand.
I.
Araguz-Briones pleaded guilty, pursuant to
a plea agreement, of being an alien found un-
lawfully in the United States following depor-
tation and after having been convicted of an
aggravated felony in violation of 8 U.S.C.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
§ 1326(a) and (b). The plea agreement con-
tained an appeal waiver provision in which
Araguz-Briones waived the right to challenge
his sentence on appeal or in a post-conviction
proceeding but reserved the right to appeal the
sentence if it exceeded the statutory maximum
or was an upward departure from the sentenc-
ing guidelines. The agreement obligated the
government “to recommend . . . [a] one-level
departure under 5K3.1 for early disposition
plea at arraignment.” When discussing the ap-
peal waiver at rearraignment, the magistrate
judge advised Araguz-Briones that he “could
still appeal from an illegal sentence.” He was
sentenced to seventy-five months’ incarcera-
tion.
Araguz-Briones appealed, arguing that he
had been sentenced under the mandatory
guidelines scheme found unconstitutional in
United States v. Booker, 543 U.S. 220 (2005).
The government claimed that the appeal waiv-
er provision of the plea agreement barred the
appeal. This court disagreed, holding that, be-
cause the court had advised Araguz-Briones
that he could appeal an illegal sentence, the ap-
peal waiver was not knowing and voluntary,
so the sentence could be appealed. The court
vacated the sentence and remanded for resen-
tencing.
At resentencing, the government argued
that by appealing, Araguz-Briones had
breached his plea agreement and deprived the
government of the benefit of its bargain, so the
government had decided not to move for the
§ 5K3.1 one-level downward departure. Ara-
guz-Briones did not object, and the downward
departure was not given.1 He was sentenced
to ninety months’ incarceration.
II.
Araguz-Briones claims the government
breached the plea agreement by not moving for
a one-level downward departure at resentenc-
ing. The government counters that it was
released from its obligation when the first pan-
el of this court found that the appeal waiver
provision was not knowing and voluntary,
because that provision cannot be severed from
the rest of agreement. We thus face the ques-
tion whether a court should hold the govern-
ment to its obligations under a plea agreement
after the court invalidates a defendant’s obli-
gation not to appeal his sentence. In other
words, can a defendant keep the benefit of his
plea agreement after being relieved of his bur-
den? This is a question of first impression in
this court, and Araguz-Briones faces a steep
hurdle on appeal.
A.
Araguz-Briones concedes that he did not
object to the government’s refusal to move for
a downward departure, and thus we review
only for plain error. United States v. Branam,
231 F.3d 931, 933 (5th Cir. 2000). Under the
plain error standard, we may correct the sen-
tence only if there is: “(1) error; (2) that is
plain; (3) that affects substantial rights; and (4)
the error seriously affects the fairness, integ-
rity, or public reputation of judicial proceed-
ings.” United States v. Lewis, 412 F.3d 614,
616 (5th Cir. 2005) (citing United States v.
Cotton, 535 U.S. 625, 631 (2002)). Further,
an error is plain only if it is clear under current
law. United States v. Salinas, 480 F.3d 750,
756 (5th Cir. 2007) (citing United States v.
1 Without the one-level departure, Araguz-
Briones’s advisory guidelines range was 77-96
(continued...)
1(...continued)
months; if the departure had been given, the range
would have been 70-87 months.

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3
Olano, 507 U.S. 725, 734 (1993)).
B.
We begin by examining the effect of this
court’s finding, in the first appeal, that the ap-
peal waiver provision was not knowing and
voluntary. Araguz-Briones argues that even
under the plain error standard this holding had
the effect of severing the appeal waiver provi-
sion and left the remainder of the agreement
intact.
Plea bargains are interpreted in accordance
with general contract principles. United States
v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
Whether a contract “is entire or severable
turns on the parties’ intent at the time the
agreement was executed, as determined from
the language of the contract and the surround-
ing circumstances.” Nat’l Iranian Oil Co. v.
Ashland Oil, Inc., 817 F.2d 326, 333-34 (5th
Cir. 1987). The government argues that, un-
der general contract principles, the appeal
waiver provision cannot be severed from the
agreement, and thus the waiver’s invalidation
by the first panel nullified the plea agreement
and released the government from its obliga-
tions.
Whether the appeal waiver provision is sev-
erable turns on whether it is an “essential
term” of the bargain. Id. The government
urges that the waiver is an essential term be-
cause the goal of a plea agreement is to offer
a defendant a lower sentence than he may re-
ceive at trial in exchange for saving the gov-
ernment the effort that would be expended if
the case were tried and appealed. An agree-
ment that waives most appellate rights saves
the government more effort than does an
agreement that does not waive those rights,
and thus the inclusion of an appeal waiver
should result in a better bargain for the defen-
dant.
The importance placed by the government
on appeal waivers is demonstrated by the At-
torney General’s guidelines for fast-track pro-
grams.2 All defendants who, like Araguz-Bri-
ones, agree to a plea bargain under a fast-track
2 In United States v. Perez-Pena, 453 F.3d 236,
238 (4th Cir.), cert. denied,127 S. Ct. 542 (2006),
the court provided a comprehensive description of
this process:
“Fast-tracking” refers to a procedure that
originated in states along the United States-
Mexico border, where district courts experi-
enced high caseloads as a result of immigration
violations. To preserve resources and increase
prosecutions, prosecutors sought to obtain
pre-indictment pleas by offering defendants
lower sentences through charge-bargaining or
through motions for downward departure.
Congress officially sanctioned the use of de-
parture fast-track programs in 2003, with its
enactment of the Prosecutorial Remedies and
Other Tools to end the Exploitation of Children
Today Act of 2003 (“PROTECT Act”), Pub.
L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650,
675 (2003). In conjunction with authorizing the
Attorney General to create and implement such
programs, Congress directed the Sentencing
Commission to promulgate “a policy statement
authorizing a downward departure of not more
than 4 levels if the Government files a motion
for such departure pursuant to an early disposi-
tion program authorized by the Attorney Gen-
eral and the United States Attorney.” Id.
Pursuant to this directive, the Commission
adopted § 5K3.1 of the sentencing guidelines,
providing that “[u]pon motion of the Govern-
ment, the court may depart downward not more
than 4 levels pursuant to an early disposition
program authorized by the Attorney General of
the United States and the United States Attor-
ney for the district in which the court resides.”
United States Sentencing Guidelines Manual
§ 5K3.1, p.s. (2004).

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4
program are required, pursuant to a memoran-
dum from the Attorney General to all U.S.
Attorneys, to waive their right “to appeal, and
to challenge the resulting conviction under [28
U.S.C. § 2255], except on the ground of inef-
fective assistance of counsel.” Perez-Pena,
453 F.3d at 239. This requirement indicates
that the waiver is essential to the bargain.
C.
The government claims the plea agreement
contains an anti-severability clause evincing
the parties’ intent that the agreement must
stand or fall as a whole. The pertinent section
of that clause reads, “If the defendant should
fail in any way to fulfill completely all of the
obligations under this plea agreement . . . the
United States will be released from its obliga-
tions under the plea agreement.”
This clause supports the government’s posi-
tion but is not determinative. It is not an anti-
severability clause; it requires Araguz-Briones
to fulfill his contractual “obligations,” not to
adhere to all the terms of the contract. Be-
cause the first panel ruled that the appeal
waiver was not enforceable, Araguz-Briones
was arguably no longer obligated, under the
agreement, to refrain from appealing. We
need not decide whether the clause, standing
alone, is effective as an anti-severabilityclause.
It lends at least some support to the govern-
ment’s contention that the parties did not
intend for the contract to be severable. Based
on the guidelines for the fast-track program
and the language of the plea agreement,
Araguz-Briones has not shown, under the plain
error standard, that the appeal waiver provi-
sion is severable.
D.
We turn to the question of the proper rem-
edy when a non-severable provision of a plea
agreement is found to have been not knowing
and voluntary; that is a question of first im-
pression in this circuit.
We typically do not extend precedent when
deciding such questions under plain error.
See, e.g., United States v. Hull, 160 F.3d 265,
272 (5th Cir. 1998). In this particular case we
choose to follow United States v. Stevens, 66
F.3d 431, 437 (2d Cir. 1995), and vacate the
sentence and remand. At the government’s
option, the district court shall either (1) resen-
tence Araguz-Briones, with the government’s
moving for the one-level § 5K3.1 reduction as
called for in the plea agreement, or (2) vacate
the plea agreement in its entirety and allow the
parties either to reach a new agreement or to
go to trial.3 Araguz-Briones “may not, how-
ever (unless the government consents), retain
the benefits of the sentencing agreement while
being relieved of its burdens.” Stevens, 66
F.3d at 437. Because these are unique facts
and we are reviewing for plain error, we limit
our holding to the facts and arguments pre-
sented in this case.
III.
To preserve the issue for further review,
Araguz-Briones challenges the constitutional-
ity of 8 U.S.C. § 1326(b). He made the same
argument in his first appeal, and we reject his
claim now for the same reasons as before. See
United States v. Araguz-Briones, 170 Fed.
Appx. 332 (5th Cir.), cert. denied 126 S. Ct.
2341 (2006).
The sentence is VACATED, and the case is
3 See also United States v. Bushert, 997 F.2d
1343, 1354 n.23 (11th Cir. 1993). The Bushert
court noted that if the government had asked the
court to allow the defendant to replead “to protect
its bargaining position more fully,” the court would
have entertained the request. Id. Here the govern-
ment has made such a request.

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REMANDED for resentencing consistent with
this opinion.

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