NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10404 Plaintiff-Appellee, D.C. No. 2:19-cr-00091-MTL-1 v. CLIVE MILTON WILSON, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding Argued and Submitted December 9, 2021 San Francisco, California Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges. Dissent by Judge BUMATAY Clive Wilson pleaded guilty to illegally reentering the United States as a previously removed alien, in violation of 8 U.S.C. § 1326(a), (b)(1). At sentencing, Wilson and the government submitted a sentence bargain plea agreement, stipulating to a maximum sentence of twelve months. The district court rejected that agreement, and sentenced Wilson to fifteen months in prison and three years of supervised * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. release. Wilson now appeals and argues, inter alia, that the district court did not give sufficient reasons for rejecting his plea agreement. We have jurisdiction under 28 U.S.C. § 1291, and we vacate Wilson’s conviction and sentence and remand for further proceedings. Wilson argues that under In re Morgan, 506 F.3d 705 (9th Cir. 2007), the district court erred in rejecting his plea agreement. In Morgan, we explained that Federal Rule of Criminal Procedure 11 “clearly vests district courts with the discretion to accept or reject plea agreements, including those that contain a stipulated sentence term.” Id. at 709 (citing Fed. R. Crim. P. 11(c)(3)(A)). But “the broad discretion granted by Rule 11 is not unbounded.” Id. at 710. In particular, courts may not engage in “the categorical rejection of a sentence bargain independent of any consideration of the specific circumstances giving rise to the bargain.” Id. at 712; see also id. (explaining that the “categorical rejection of sentence bargain plea agreements is error”). Instead, “district courts must consider individually every sentence bargain presented to them and must set forth, on the record, the court’s reasons in light of the specific circumstances of the case for rejecting the bargain.” Id. Based on our review of the sentencing transcript, some of the district court’s statements could be construed as rejecting Wilson’s plea agreement at least in part because Wilson and the government stipulated to a below-Guidelines sentence. For 2 example, the district court in rejecting the plea agreement stated that “the plea agreement should have encompassed the sentencing range for this offense level and criminal history category,” and that the parties agreeing in a plea agreement “to deviate downward or vary downward from what Mr. Wilson would be expected to get based on this,” including based on his glaucoma, was not “a reason why you should tie my hand as the judge.” To the extent the district court imposed a categorical rule rejecting plea agreements in those circumstances, that would have been error under Morgan, as the government acknowledged at oral …
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