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A little more than a year ago, Los Angeles federal district court judge Cormac Carney stunned both the L.A. U.S. Attorney’s Office and Broadcom co-founder Henry Samueli when he rejected Samueli’s plea deal in a criminal stock options backdating case. Carney ridiculed the agreement, which called for Samueli to receive a sentence of five years’ probation and to pay a fine of $12.25 million, noting that two defendants in a case in which Samueli is an unindicted co-conspirator faced life in prison. The deal, Carney wrote, “suggests that Dr. Samueli’s wealth and popularity will allow him to avoid the consequences of his alleged misconduct at Broadcom. The court cannot accept a plea agreement that gives the impression that justice is for sale.” The government and Samueli, who is represented by Gordon Greenberg of McDermott Will & Emery, decided to appeal Carney’s ruling rather than withdraw the plea. On Thursday they learned the consequences of that strategy: A three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed the appeal without considering the merits, finding that it didn’t have jurisdiction because Samueli hadn’t yet been sentenced. “Once the district court enters the judgment and commitment order, it will be clear whether Samueli’s sentence is greater than, less than, or equal to the stipulated term,” wrote Judge Ronald Gould, in a rare 9th Circuit consideration of “the broad rule that orders in criminal cases are generally unreviewable” before sentencing. “At that time,” the opinion says, “the district court’s rejection of the … plea and sentence agreement can be reviewed.” Greenberg had argued at the 9th Circuit that Samueli would suffer irreparable harm if Carney’s ruling stood, but the appellate court disagreed. The McDermott partner sent us the following e-mail statement in response to our request for comment: “We are reviewing the court’s decision that it had no jurisdiction to hear the merits of our appeal at this stage of the case. As the court recognized, the timing for a merits review of the rejection of the parties’ resolution of a criminal case is important for the appellate courts, and we will carefully review the court’s analysis and consider all our options.” Assistant U.S. Attorney George Cardona argued for the government at the 9th Circuit. According to the Orange County Register, Samueli may now face a five-year prison sentence.

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