United States of America v. Sundeep Dharni

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SUNDEEP DHARNI,
Defendant - Appellant.
No. 11-16438
D.C. Nos. 2:10-cv-02934-EJG
2:05-cr-00306-EJG
Eastern District of California,
Sacramento
ORDER
Before: WALLACE, FISHER, and BERZON, Circuit Judges.
(1) The Joint Motion to Dismiss and Remand to District Court and Joint
Status Report are construed as a joint motion for summary reversal of the district
court’s denial of relief under 28 U.S.C. § 2255.
(2) The joint motion for summary reversal, so construed, is granted in the
interests of justice. See Baca v. Adams, 777 F.3d 1034 (9th Cir. 2015). The
district court shall enter judgment vacating Dharni’s convictions. 28 U.S.C.
§ 2255. We express no view as to the alleged constitutional infirmity of Dharni’s
conviction. Cf. United States v. Hock, 172 F.3d 676, 680-81 (9th Cir. 1999)
(holding that the district court properly construed the parties’ stipulation that the
FILED
OCT 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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defendant’s conviction was defective as a § 2255 motion and properly granted the
motion).
(3) This matter is remanded for further proceedings consistent with this
disposition. If the parties reach a new plea agreement under Fed. R. Crim. P.
11(c)(1)(C), the district court should either accept the parties’ new plea agreement
and sentence Dharni in accordance therewith or reject that plea agreement and
proceed accordingly.
SO ORDERED. THE MANDATE SHALL ISSUE FORTHWITH.

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USA v DHARNI 11-16438
WALLACE, J., dissenting
I dissent from this Order for the same reasons I dissented from the majority’s
order requiring to the parties to show cause. As I explained there, we should now
reinstate our prior opinion, United States v. Dharni, 738 F.3d 1186, reh’g granted
and opinion vacated, 757 F.3d 1002 (9th Cir. 2014), because Dharni has stipulated
that he cannot establish that the facts assumed in our original opinion were wrong.
That stipulation forecloses him from carrying his burden of establishing a Sixth
Amendment violation. Because he has failed to carry his burden, the district court
did not err in denying his 28 U.S.C. § 2255 motion.
I disagree with the majority that we have power to reconstrue the parties’
filings as a joint motion for summary reversal. While the majority believes that the
“interests of justice” support doing so, that belief cannot overcome the fact that the
parties never actually filed any such motion. Moreover, the government has
expressly disclaimed any confession of error. Accordingly, I see no basis for
ordering the district court to vacate Dharni’s convictions. I respectfully dissent.
FILED
OCT 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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