United States v. Ruiz, Jr.
No. 23-3172. 1/14/2025. D.Kan. Judge Rossman. US Sentencing Guidelines—Upward Departure—Plea Agreement on Sentencing.
January 14, 2025
Ruiz was convicted after pleading guilty to one count of possession of ammunition by a prohibited person. The government agreed in the plea agreement to recommend a sentence at the low end of the applicable US Sentencing Guidelines (USSG) range, which was 51 months’ imprisonment. The presentence investigation report (PSR) determined that Ruiz was in criminal history category VI and concluded the advisory USSG range was 51 to 63 months’ imprisonment. Neither party objected to the PSR. At sentencing, the prosecutor recommended a custodial sentence of 51 months, but he also discussed Ruiz’s criminal history score and his prior convictions. The district court relied on Ruiz’s criminal history to depart upward under USSG Manual § 4A1.3 and imposed a 70-month prison sentence.
On appeal, Ruiz contended for the first time that the government breached the plea agreement’s sentencing recommendation by advocating against the low-end USSG sentence that the government promised to recommend. Accordingly, the Tenth Circuit reviewed for plain error. It is undisputed that the government promised Ruiz in his plea agreement to recommend a sentence at the low end of the USSG. Assuming without deciding that plain error occurred, Ruiz had to show that such error affected his substantial rights by demonstrating that there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Where the error asserted is breach of a plea agreement, there must be a reasonable probability that the sentence would have been less without the government’s breach. Here, the record shows that the district court was very concerned by Ruiz’s significant criminal history from the start of the sentencing hearing. The district court expressed its concerns before the prosecutor even spoke at the sentencing hearing, based on its independent review of the PSR. Thus, even assuming a plain error occurred, Ruiz has not shown a reasonable probability that but for the error, the outcome of the proceeding would have been different.
The sentence was affirmed.