United States v. Green – CourtListener.com

                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         AUG 26 2024
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 23-706
                                                 D.C. No.
             Plaintiff - Appellee,               1:21-cr-00242-BLW-1
 v.
                                                 MEMORANDUM*
TROY MELVIN GROENE,

             Defendant - Appellant.

                    Appeal from the United States District Court
                              for the District of Idaho
                    B. Lynn Winmill, District Judge, Presiding

                            Submitted August 21, 2024**
                                Portland, Oregon

Before: CHRISTEN, NGUYEN, and HURWITZ, Circuit Judges.

      Troy Melvin Groene appeals the sentence imposed by the district court

following his guilty plea to one count of sexual exploitation of a child, in violation

of 18 U.S.C. § 2251(a). The sentence imposed called for 25 years of



      *
             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).
imprisonment, five years longer than the parties’ joint recommendation in the plea

agreement. Groene argues that the government’s statements at sentencing

implicitly breached the plea agreement. Because the parties are familiar with the

facts, we do not recount them here. We have jurisdiction to review Groene’s

sentence pursuant to 18 U.S.C. § 3742(a). United States v. Farias-Contreras, 104

F.4th 22, 27 (9th Cir. 2024) (en banc). Where, as here, defense counsel has raised

a timely objection, we review de novo the defendant’s claim that the government

has breached its plea agreement. See id. We affirm.

      The government did not implicitly breach the plea agreement by mentioning

“aggravating factors” during its allocution before the sentencing judge.1 Following

Farias-Contreras, we assess implicit breach by first looking to the plain language

of the plea agreement. Id. at 30. The agreement here permitted the government

“to allocute fully at sentencing regarding any sentencing recommendation,” and to

rely on facts known to the court or contained in the presentence report. The same

allocution clause of the agreement also specified that any information the

government submitted be “in support of its recommendation.” Groene takes the


1
        The government stated, “There are some aggravating factors, Your Honor,
that I must mention to the Court because this process is important for the victims
and the Government. But one of the aggravating factors that strikes me in this case
is just the sheer number of victims and the pattern that the defendant has
demonstrated over the course of most of his life.” The government also stated,
“(o)n the Government’s side of things . . . , it is what you have heard today, what
Mr. Groene’s conduct has done to the victims.”

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“aggravating factors” statement in isolation and argues that it was not made “in

support of” the joint recommendation.

      But Farias-Contreras requires that we look beyond an isolated statement to

“the totality of circumstances and consider, inter alia, the sequencing, severity, and

purpose of the statements” to assess whether the government’s arguments are

“made in good faith and advance the objectives of the plea agreement.” Id. at 31.

In context, the prosecutor’s statement served to acknowledge that despite

“aggravating factors,” the 20-year sentence was appropriate. The government

began its allocution by describing the “background as to how we reached the

resolution.” The government then made a detailed and multi-pronged argument for

the joint recommendation, both before and after the challenged statement. Its

defense of the agreement was robust. For example, the government stated,

“Twenty years is a significant sentence, Your Honor, and it’s absolutely

appropriate. And I am talking about why. Twenty years of this man’s life is an

appropriate sentence for this Court to impose.” The government also stated, “And

the reason that the plea agreement is appropriate, Your Honor, is because it

adequately accounts for aggravating and mitigating factors in the case.” The

challenged statement in context was thus responding to the court’s stated

reluctance to follow the joint recommendation and was made “in support of” the

recommendation pursuant to the plea agreement.



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      Other circumstances indicate that the government’s arguments were “made

in good faith and advance the objectives of the plea agreement.” Farias-

Contreras, 104 F.4th at 31. The government did not deploy “inflammatory

comments” or “a series of prejudicial statements” that might invite doubt about its

good faith. United States v. Heredia, 768 F.3d 1220, 1231–32 (9th Cir. 2014)

(quotation marks and citation omitted).2 Indeed, in his reply brief, Groene

acknowledges that the government deserves credit for spending a “great deal of

time arguing in support of the joint recommendation,” and confirms that he “is not

implying any bad faith on the government’s part.” Taking the challenged

statement in context, there is little room to doubt that the government sought to


2
       Groene’s argument relies on Heredia, United States v. Whitney, 673 F.3d
965 (9th Cir. 2012), and United States v. Mondragon, 228 F.3d 978 (9th Cir.
2000). These cases are distinguishable because of both the impropriety of those
prosecutors’ statements and the terms of the plea agreements. The plea agreement
in Heredia required both parties to jointly recommend the low-end sentence and
only allowed the parties to “supplement the facts” or “correct any and all factual
misstatements.” 768 F.3d at 1228. Here, by contrast, the allocution clause of the
plea agreement explicitly allowed the government to discuss any information in
support of its recommendation. Whitney and Mondragon similarly lacked an
allocution clause in the plea agreements at issue. In both of those cases, we found
breach after the prosecutors raised facts already evident in the defendant’s record,
which could “serve no purpose but to argue for a harsher sentence than that which
(the government) was obligated to recommend.” Whitney, 673 F.3d at 971; see
Mondragon, 228 F.3d at 979–81; cf. United States v. Moschella, 727 F.3d 888, 892
(9th Cir. 2013) (rejecting the defendant’s comparison of his case to Whitney and
Mondragon “because here the plea agreement specifically authorized the
government’s arguments”). As in Moschella, the government’s arguments here
“were directed to the specific objective identified in and permitted by the plea
agreement.” See Moschella, 727 F.3d at 892.

                                        4                                     23-706
present a “united front” to preserve the joint recommendation. United States v.

Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001). We therefore hold that the

government’s allocution complied “with the letter and spirit of the plea

agreement.” Farias-Contreras, 104 F.4th at 31.

      AFFIRMED.




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