Courts Consider Breaches of Plea Agreements by Prosecutors

Government’s Breach of Plea Leads to Vacatur of Sentence on Plain Error: Malone

Facts:  Malone Plead Guilty to Charges After Alleged Bond Violations

Malone was charged with charges of Fraud, transportation and sale of a stolen motor vehicle.  He was arrested and placed on bond with a condition that he not violate the law again. Shortly afterwards he was accused of listing vehicles for sale that he did not own and making a fraudulent sale of a vehicle in January 2020. A warrant was issued for his arrest and the probation officer recommended that his bond be revoked. He eventually filed a notice stating that he intended to change his plea to guilty on the first set of cases.

Malone and the government entered into a plea agreement to plea to some of the original charges. The government indicated that they had the right to oppose a two-level reduction for acceptance of responsibility if “it received information that Malone acted inconsistently with the acceptance of responsibility “between the date of the plea hearing and the date of the sentencing hearing.’”

The government also agreed to move for a one level reduction for acceptance of responsibility “[p]rovided the defendant otherwise qualifies, and that the defendant does not, before the date of the sentencing hearing, either personally or through the actions of the defense attorney on behalf of the defendant, take any action inconsistent [with] the acceptance of responsibility.”

In exchange, “Malone agreed ‘to refrain from taking any action inconsistent with [his] acceptance of responsibility for the offenses to which [he was] pleading guilty,’ not to commit any other offenses while awaiting sentencing, and to provide truthful information to probation and the district court.”

The probation officer recommended against any guideline adjustment for acceptance of responsibility and ultimately recommended a total offense level of 23 and a criminal history category of III for a recommended guidelines range of 51-71 months of imprisonment. Malone filed a sentencing memo indicating that he had abided by the plea agreement and with the acceptance of responsibility points his offense level would be 20 and his guideline range would be 41-51 months.

At sentencing Malone requested a three-level reduction for acceptance of responsibility, arguing that “if the district court granted him the first two points for acceptance of responsibility, the government had agreed to recommend the third.”

The government opposed any reduction for acceptance of responsibility.  Specifically, the government “expressly disavowed relying for its position on Malone's statements to the probation officer when the probation officer was preparing the PSR. Indeed, the government asserted that it had not been privy to any conversations during Malone's interview with the probation office so its position on acceptance of responsibility was based ‘solely on the conduct that occurred [in January 2020] after Mr. Malone was released’ on bond in November 2019. The government argued that Malone's January 2020 offense (which, as we have mentioned, occurred post-arrest but pre-plea) was very similar to his indicted offenses and demonstrated a lack of acceptance of responsibility.”

The government also opposed a downward variance asked for by Malone, indicating that while they recommended a 66-month sentence, they not think it was enough and if they had it their way, the sentence would be double or triple that.

The district court declined any deduction for acceptance of responsibility and denied the request for a downward variance. The court sentenced Malone to 71 months.

Appeal:  The Government's Actions were a Breach of the Plea

On appeal, Malone argued that this was a breach of the plea agreement: “He assert[ed] the government breached the plea agreement in two ways: (1) by opposing an acceptance of responsibility reduction for reasons that violated the plea agreement, and (2) by paying mere lip service to recommending a sentence within the guidelines range but then also advocating for a higher sentence.”

The court indicated that this would be subject to the plain error test. The court can find plain error when “(1) an error has occurred, (2) the error was plain, and (3) it affected then defendant's substantial rights, and if those prongs are met, we then have discretion to correct the error if it (4) seriously affected the fairness of the judicial proceedings.”

Court: The Government's Actions were a Breach of the Plea

The court noted that the plain language of the agreement shows that the government “implicitly agreed not to object to the two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) unless it received information that Malone acted inconsistently with acceptance of responsibility “between the date of the plea hearing and the date of the sentencing hearing.”  The court indicated that the government knew about Malone’s post arrest, pre-plea conduct that they cited when they opposed his acceptance of responsibility reduction at sentencing. Although they stated that Malone’s “alleged continued criminal conduct and statements to probation were inextricably intertwined, it did not assert this before the district court and instead expressly relied solely on Malone's criminal conduct before he entered into the plea agreement. In fact, as we've noted, at sentencing, the government explicitly denied relying on Malone's alleged statements to the probation officer because the government wasn't present when Malone made them.”  Based on all of this the court determined that the government breached the plea agreement by arguing against the acceptance of responsibility reduction based on Malone’s pre-plea conduct.

The court indicated that this also affected Malone’s substantial rights.  The court noted that “because the district court explained that it relied in part on the government's argument in denying the acceptance-of-responsibility adjustment, we cannot say that Malone ‘likely would not have obtained’ the reduction for acceptance of responsibility, regardless.”

Finally, the court indicated that the government’s violation of the plea agreement “seriously affected the integrity, fairness, or public reputation of the proceedings.”  The court held that this was so because of the government’s violation of the plea agreement both in their objection to the reduction for acceptance of responsibility and also because they argued that if the government had their way that the sentencing recommendation would have been double or triple the amount that was suggested.  The court indicated that the government’s repeated clear violations of the plea agreement “seriously affected the fairness, integrity and public reputation of judicial proceedings.”

The Eleventh Circuit exercised their discretion to vacate the sentence and remand for resentencing before a different judge. No. 20-12744

Subtle and Not-So Subtle Arguments For Higher Sentence Were Agreement Violation: Farias-Contreras

Farias-Contreras was charged by way of indictment with conspiracy to distribute methamphetamine or heroin in violation of 21 U.S.C. 841 and 846, and possession with intent to distribute methamphetamine. Farias-Contreras entered into a plea agreement with the government wherein he agreed to plead guilty to one count of the indictment. In exchange for Farias-Contreras’ guilty plea, the government agreed, among other things, to “not recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States.”

Following his Farias-Contreras’ guilty plea, the government calculated his Guidelines range to be 151 to 188 months imprisonment. The government then filed a sentencing memorandum recommending a term of 151-months imprisonment. But that recommendation was contained in two sentences of the government’s six-page sentencing memorandum. The remainder of the pleading focused on the social, communal and familial impact of drug trafficking generally, Farias-Contreras’ prior contacts with law enforcement, and information already contained in the PSR.

Further, the government argued Farias-Contreras’ physical impairment was an aggravating-rather than mitigating-factor in addressing the appropriate term of imprisonment.

At sentencing, the government reiterated the same arguments presented in its sentencing memorandum. The district court, citing to the government’s arguments, imposed a sentence of 188-months, the top of the advisory Guidelines range. Farias-Contreras appealed to the Ninth Circuit.

On appeal, Farias-Contreras argued that the government implicitly breached the plea agreement by making arguments in both the sentencing memorandum and sentencing hearing that undercut the government’s recommendation of a 151-month sentence. But because the alleged breach was not objected to before the district court, the Ninth Circuit reviewed for plain error only.

Even with the demanding standard of plain error review, the Ninth Circuit concluded that the government implicitly breached the plea agreement by recommending a low-end Guidelines sentence but then making inflammatory comments about the defendant’s past offenses that provided the court with no new information. The court noted that when the government promises to make a recommendation at the low end of the Guidelines, it may not introduce information that serves no purpose but to influence the court to give a higher sentence.

The court recognized that the plea agreement specifically allowed for the parties to present and argue additional facts which were relevant to the Guidelines computation or sentence. However, the Ninth Circuit found that many of the facts the government introduced, such as national drug statistic, opinions about the impact of drugs on communities, and intra-office discussions on the appropriateness of the sentence, had no relevance here.

The court held the prosecution’s remarks and arguments implicitly breached the plea agreement and amount to plain error. Accordingly, the court vacated Farias-Contreras’ sentence and remanded the case to a different district judge for resentencing.

Prosecutor's Advocacy in Resentencing Constituted Violation of Plea Agreement:  Warren

Warren's Plea and First Appeal

Warren pled guilty to felon in possession of a firearm with a written plea agreement.  This agreement indicated the government was to “recommend that the court impose a sentence within the range and of the kind that the guidelines set.”  The plea agreement also said that the government “had an independent obligation to avoid “suggest[ing] in any way that a variance was appropriate.”  After the plea agreement, the district court notified Warren that they were considering an upward variance.

The court sentenced Warren to 120 months in prison, doubling the high end of Warren’s guidelines range.  Warren appealed, stating the district court relied exclusively on his criminal history to vary upwards.

The 6th Circuit agreed stating ““because the Guidelines already account for a defendant's criminal history,” the district court's “extreme variance” based solely on Warren's criminal history was “inconsistent with the need to avoid unwarranted sentence disparities.”

Warren's Resentencing

At resentencing the district court circulated a notice of a possible upward variance.  At sentencing the court asked the government’s general position.  The prosecutor indicated that the government entered into a plea agreement and that they had no intention of violating.  Next the government indicated awareness of Warren’s prior convictions but not about the conduct that gave rise to the same.

The conduct at issue was two attempted felonious assaults that were based on shootings.  The first felonious assault involved him shooting two people and the second incident involved shooting at a vehicle that contained Warren’s own family members.

The prosecutor stated  “So I just want to make sure that the court is aware that the government did not have that information at the time that it entered into the plea agreement and quite probably would have made different recommendations had it known that information.”

Warren’s counsel argued that this was a violation of the plea agreement.  The court disagreed, stating that the court construed the government's comment simply as explaining “why and how it is they came about to enter the [plea] agreement.”

The court eventually sentenced Warren to 96 months in prison.  Warren appealed, stating that the government breached the plea agreement.

The 6th Circuit's Decision

The Court noted that when you look at the fact that “the government here committed itself not to in any way “mention [a variance] as something to think over,” “bring [a variance] to the mind for consideration,” “propose” or “mention” a variance “as a possibility,” or put a variance “forward by implication.”

The court indicated that the government did not keep their promise:

“The government told the court it likely would have made a different recommendation had it known Warren shot at multiple people, severely injuring one. At the very least, this brought a variance forward by implication—the remark cast doubt on the adequacy of the Guidelines range and injected reservations about the plea agreement itself. It relayed to the court that the government agreed to the plea with incomplete information and no longer felt a Guidelines sentence was appropriate. And by undermining the Guidelines range as an appropriate sentence, the government “suggested” in some way, even if indirectly, that the court should vary.”

The court went on to note that the government bookended their remarks with a description of the crimes that Warren committed.  This included a statement to not agree to Warren’s guidelines range again if given the chance as well as why there would not be agreement to those guidelines.  “That's especially true because the district court already had access to the information the government relayed—it was in Warren's presentence report.  So the government's conduct “undoubtedly constituted advocacy, because the government was not providing any new factual information to the district court.”

The court also noted that in the broader context, the government made its remarks after the court invited the parties to comment on whether it should impose a variance.

“In other words, the government specifically identified the defense's advocacy for a Guidelines sentence as the basis for its comments, and it pointedly undermined the claim that it agreed the range was appropriate. That the prosecuting attorney repeated her views that the government was having second thoughts about the plea agreement even after defense counsel objected leaves little doubt as to the intent of the government's comments at sentencing.”

Further, the court noted in Santobello that whether the government’s breach actually influenced the court is irrelevant.  ““when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

Warren's Resentencing for Plea Brings New Judge

The court stated that although this was not a reflection on the judge, “it is “necessary for defendants to get the benefit of the bargain, and to preserve the appearance of an impartial judiciary—one that is not influenced by the prosecutor's previous breach.”

The Sixth Circuit Reversed the ruling of the district court and remanded the case back down with instructions to be resentenced by a different judge.  No. 20-3045

Eighth Circuit:  Plea Agreement Violated Even over Prosecutor's Attempt to "Cure:" Brown

Brown's Firearm Case and Plea Agreement

Brown pled guilty to knowingly possessing a stole firearm.  The parties agreed that “[t]he applicable Guidelines section for the offense ... is  U.S.S.G. § 2K2.1(a)(7),” with “a base offense level of 12.” By contrast, the Presentence Investigation Report calculated a base offense level of 20… This disparity came from the PSR’s conclusion that Brown was a prohibited person whose offense involved possessing a semiautomatic firearm capable of receiving a large-capacity magazine. See  § 2K2.1(a)(4)(B). Brown objected to this. The Government did not, instead stating in its sentencing memorandum that it “believe[d] that the range calculated by [the PSR] [was] appropriate.”

At the first of two sentencing hearings, Brown objected to the PSR’s base-offense-level calculation stating that it was higher than what the parties had agreed to in the plea agreement.  The government stated that the PSR’s calculation was correct even though they acknowledged the plea agreement.  The prosecutor also stated that they thought that Brown would have a hard time overcoming the “large capacity magazine” claim.   The prosecution also stated that they could not prove the “large capacity magazine” portion, causing the court to postpone the hearing.

At the second hearing the government put a witness on the stand to prove the large capacity magazine enhancement.  The Court asked the government for a sentencing recommendation and the government stated:

“I would ask you to stick to the plea agreement. ... [D]efense counsel ... believe[s] it may possibly be a breach of the plea agreement on my part if I argue for the higher guideline sentence than what I had argued for in the plea agreement. So because of that, Judge, I told [defense counsel] that I will stand silent when it comes to a recommendation, because he believes it possibly may be a breach of the plea agreement. I don’t think it would be, but be that as it may ....”

Defense counsel argued that the government breached the plea agreement by filing a sentencing memorandum endorsing the PSR’s calculation.  The court seemed to conclude that the government did not breach the plea agreement.  The court then overruled Brown’s objection and adopted the PSR (including the higher range of punishment for the level 20).  Brown appealed indicating that the government breached the plea agreement.

Government's Breach of Plea Agreement

The Court referenced their prior ruling in United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009): “When the offense level is part of the inducement or consideration for pleading guilty, the government breaches a plea agreement by advocating a higher offense level than that specified in the agreement.”

The court noted that the prosecutors did that very thing here:  “In the plea agreement, the Government agreed to a base offense level of 12 under  § 2K2.1(a)(7). Yet, in its sentencing memorandum, it said that the PSR’s base offense level of 20 under  § 2K2.1(a)(4)(B) was ‘appropriate.’ In doing so, the Government advocated for a different applicable guidelines section and higher base offense level than it had agreed to, thus breaching the plea agreement.”

Can the Government "Cure" the Breach of the Plea Agreement?

The government indicated that they cured a breach because at the end of the second hearing, the government asked the court to “stick to the plea agreement.”  The court noted that the government did not present any caselaw.  However the court also noted that ,  “other ‘circuits require that the government offer an ‘unequivocal retraction’ of its erroneous position to sufficiently cure a breach… In the same breath as telling the district court “to stick to the plea agreement,” the Government maintained that it was allowed to argue for a higher-than-agreed-to calculation.’”  Further, “at the first sentencing hearing, the Government ‘proffer[ed]’ facts establishing a higher base offense level than the plea agreement stipulated and essentially invited the district court to go on a fishing expedition for additional supporting facts.”  As a result, the court determined that the government’s actions belied the idea that they had cured any breach.

Based on the above, the court vacated Brown's sentencing and remanded the case for resentencing before a different district court judge.