United States of America v. Abraham De Los Santos- Sanchez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABRAHAM DE LOS SANTOS-
SANCHEZ,
Defendant-Appellant.
No. 20-10206
D.C. Nos.
2:18-cr-00171-MCE-3
2:18-cr-00171-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted November 16, 2021**
San Francisco, California
Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
Abraham De Los Santos-Sanchez was convicted, pursuant to a plea
agreement, of conspiracy to grow over 1000 marijuana plants in violation of 21
U.S.C. §§ 841(a)(1) and 846. The offense carries a mandatory minimum of ten
* 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).
FILED
NOV 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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years’ imprisonment, id. § 841(b)(1)(A)(vii), to which Santos-Sanchez was
sentenced. A defendant may, however, be sentenced below that minimum if he
meets the several requirements of 18 U.S.C. § 3553(f), known as the “safety
valve.” Santos-Sanchez contends that the Government breached the terms of the
plea agreement by arguing at sentencing that Santos-Sanchez was carrying a
firearm in connection with the offense and therefore was ineligible for the safety
valve, see id. § 3553(f)(2). We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
We review for plain error an unpreserved claim that the prosecution violated
the terms of a plea agreement. Puckett v. United States, 556 U.S. 129, 135-36
(2009). To establish plain error, Santos-Sanchez must show “(1) an error, (2) that
is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Smith, 424
F.3d 992, 1000 (9th Cir. 2005) (citing Johnson v. United States, 520 U.S. 461, 467
(1997)).
Any error here was not plain. The agreement’s language was, at best,
ambiguous as to what the Government was obliged to recommend regarding the
application of the safety valve and the mandatory minimum.1 See Puckett, 556
1 In fact, the most natural reading of the plea agreement is that the
Government was obligated to argue for a below-minimum sentence only if the
district court had determined that Santos-Sanchez met all the requirements of
§ 3553(f). Nowhere does the agreement preclude the Government from making

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U.S. at 135 (“[T]he legal error must be clear or obvious, rather than subject to
reasonable dispute.” (citing United States v. Olano, 507 U.S. 725, 734 (1993))).
Santos-Sanchez argues that the ambiguity in the agreement should have been
obvious to the district court, if not the breach itself. But it is precisely when “the
scope of the Government’s commitments . . . [are] open to doubt” because of poor
“draftsmanship” that “the second prong of plain-error review” will “have some
‘bite’ in plea-agreement cases.” Id. at 143; see id. (“Not all breaches will be clear
or obvious.”). The ordinary rule that ambiguities in plea agreements are
interpreted in the defendant’s favor is inapposite here given our standard of review.
Moreover, any error did not impact Santos-Sanchez’s substantial rights
because there is not a reasonable likelihood that any error “affected the outcome of
the district court proceedings.” Id. at 135 (quoting Olano, 507 U.S. at 734). Three
facts in the record indicate that the district court would likely have determined the
safety valve to be inapplicable even absent the Government’s sentencing
arguments. First, attached to the plea agreement were photographs of Santos-
Sanchez with a firearm in the marijuana fields. Second, the presentencing report
any arguments related to that threshold determination. Cf. United States v. Ellis,
641 F.3d 411, 419 (9th Cir. 2011) (rejecting an argument that the government
breached a plea agreement “by failing to object to the PSR’s” inclusion of an
upward sentence adjustment because “[t]he plea agreement did not require the
government to do so”). Nevertheless, we assume for our decision that the
agreement is indeed ambiguous on this point.

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reviewed by the court concluded that Santos-Sanchez did not qualify for the safety
valve because he was documented over video “touting [his] ability to protect the
grow with the rifles and handgun” and saying, “[t]his is so they know we are not
playing around.” Third, the court expressed at least a tentative view that Santos-
Sanchez’s wildlife-protection explanation—which was the only reason he gave for
why he was carrying a firearm—was unreasonable, even before the Government
made its arguments.
AFFIRMED.

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