A defendant reached a plea agreement with the government in which it promised to argue at sentencing for a sentence within the sentencing guidelines range computed in the plea agreement. But at the sentencing hearing the government double-crossed the defendant and argued for a higher sentence and then, apparently realizing what had been done, attempted to backtrack only to have the district judge say it didn’t matter anyway. What happens in this situation was answered by the Sixth Circuit in United States v. Ligon.
The defendant pleaded guilty to being a straw-man purchaser of a firearm intended for someone else. A plea agreement was reached in which “the parties agreed to ‘recommend that the Court impose a sentence within the range and of the kind specified pursuant to the advisory Sentencing Guidelines in accordance with the computations and stipulations’ in the agreement, and that ‘neither party would recommend or suggest in any way that a departure or variance is appropriate, either regarding the sentencing range or regarding the kind of sentence.’” The terms of the plea agreement calculated a sentencing range of 21 – 27 months. Then the probation office determined that a four-level enhancement pursuant to 2K2.1(b)(6)(B), which applies if the defendant had knowledge or reason to believe that the firearm would be used in a felony offense, should be applied and this made the sentencing range 30-37 months.
At the sentencing hearing, the government forgot all about the promise it made in the plea agreement and argued that the offense was “egregious” and that the enhancement applied and that a sentence in the 30-37 months range was appropriate. The district court went along with the government’s newly-adopted position, found the enhancement applicable and imposed a sentence of 35 months.
After announcing the sentence, the district judge asked for any legal objections. The government apparently then remembered the promise made in the plea agreement. This was a curious exchange:
Govt.: Well, with respect to the four-level enhancement, it was our position – and, again, in my – and I’m not sure if this would – if it would be an objection. But I would just reiterate that what I put in my sentencing memorandum, that was still the government’s position. I realize that when I was arguing for a sentence, and a lengthy sentence, which I do believe that this defendant deserves, and it’s already been imposed by this court, I said 30 to 37 months. However, I didn’t want to – I don’t want to be inconsistent. It was the position –
Court: Listen, I’m not sure what you’re trying to say, but maybe I can help you.
Govt.: Okay.
Court: The plea agreement that [the defendant] entered doesn’t obligate me to do one thing or the other. And, in fact, had it, at this juncture, meaning at this moment, I’d reject it and impose the sentence that I’ve just imposed. I’m not bound by that agreement. I’m not the government. I’m not the defense. So if you intend to make an objection, by George, make it now or take your seat.
Govt.: Okay. Then I would object to that enhancement. I –
Court: Overruled for the reasons stated.
The Sixth Circuit held that the government had breached the plea agreement by arguing for a sentence higher than the range stipulated in the plea agreement, vacated the sentence and remanded for resentencing before a different district judge.
The Sixth Circuit relied on the Supreme Court’s decision in Santobello v. New York, 404 U.S. 257 (1971), to state the following rule: “if the government breaches a plea agreement, a defendant is entitled to relief regardless of whether the district court was ultimately influenced by the breach and regardless of whether the breach was inadvertent.”
The Sixth Circuit also concluded in accordance with Santobello that resentencing before a different district judge was necessary, explaining that this was “necessary for defendant 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.”
Finally, the Sixth Circuit declined the reach the question of whether the district court had erred in applying the enhancement.
This seems likely to prove a Pyrrhic victory for the defendant. The Sixth Circuit did not rule that the district court had erred in deciding that it was not bound by the parties’ agreement about the correct sentencing range or that the district court had erred in ruling the enhancement applicable. It would appear that the newly-assigned district judge could also find the enhancement applicable and impose the same (or even greater) sentence, the government being required only to forgo advocacy for such a departure from the plea agreement. So, the government breaches its contract, and the result therefor for the defendant will likely be the same as if no contract had ever existed.
And so it goes.
Robert L. Abell
www.RobertAbellLaw.com
