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An unusual plea agreement led to an unusual decision Thursday by the 9th U.S. Circuit Court of Appeals — it ordered a criminal case reassigned to a new judge. In vacating, collectively, 40 years of prison sentences, a unanimous three-judge panel wrote that justice would be served by reassigning the case to someone other than Marilyn Hall Patel, the Northern District’s chief judge. “The appearance of justice is served by reassigning this matter to a different judge, since the district court openly stated that it believed that Raul and Gerardo [Reyes] were attempting to manipulate the system, and this belief may have caused the district court’s adamancy in its rulings,” wrote Montana U.S. District Judge Donald Molloy, sitting by designation. He was joined by Judges Stephen Reinhardt and Raymond Fisher. The ruling is also a reminder to judges that their power is limited when parties seek to void a plea agreement. Gerardo and Paul Reyes were indicted in 1995 in a massive cocaine and methamphetamine distribution case. Both later agreed to plea deal under Rule 11(e)(1)(c), asking Patel for a specific sentence — in this case, somewhere between 120 and 150 months for each. In exchange, the brothers were to provide prosecutors with information. Both, however, decided against that and sought to press their cases — a move that didn’t sit well with Patel, who said they couldn’t get out of the agreement “just by failing to cooperate.” The motion to void the deal was supported by the U.S. attorney. Instead, Gerardo got 188 months and Raul got 288 — less than the maximum under the sentencing guidelines but more than the plea deal allowed. Both appealed, and in a factor cited by the panel in its decision to reassign the case, Patel refused to approve the Reyes’ court-appointed attorneys’ request for funding to obtain a transcript of the sentencing hearing. Now, seven years after it was first indicted, the case goes back to square one. “Perhaps we’ll be able to resolve it, perhaps it goes to trial,” said Raul’s attorney, San Francisco solo Mark Vermeulen. Although the government did contest the appeal, prosecutors said they weren’t surprised by the 9th Circuit’s decision. “It doesn’t change the law, and we fully expected a remand,” said Assistant U.S. Attorney Hannah Horsley, chief of the appellate section. Assistant U.S. Attorney Laurie Gray argued the case at the 9th Circuit. Kenneth Noel, Gerardo’s attorney, could not be reached for comment.

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