A Nice Breach Case

November 24, 2014
By Hanging Out with Carl Gunn


  • A recent Ninth Circuit opinion reaffirms prior cases recognizing that the government can breach plea agreements implicitly as well as explicitly.
  • There’s a breach whenever the government makes a required recommendation but accompanies it with inflammatory arguments that effectively undercut the recommendation.
  • So long as you object to the breach, there’s an automatic reversal without any harmless error analysis and with remand to a different judge fo resentencing.


A couple of years back, I put up a post (see “You Can Make Them Fix That Breach! Really Fix It.” in the August 2012 link at the right) which pointed out the good Ninth Circuit case law establishing the remedy for governmental breach of a plea agreement – (1) an order of specific performance with (2) transfer to a different judge and (3) no harmless error inquiry. (The latter only if there was an objection in the district court, though, because plain error requirements apply if there was no objection in the district court. See United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012) (citing Puckett v. United States, 556 U.S. 129 (2009))). I also noted as a secondary point some good Ninth Circuit cases finding a breach even when the government technically makes the sentence recommendation it’s required to make, if it then offers arguments that clearly suggest something harsher. See Whitney, 673 F.3d at 970-71 (holding statements emphasizing seriousness of defendant’s prior record were breach of agreement to make low end recommendation and rejecting argument that statements were necessary to assure court did not give sentence below guideline range); United States v. Mondragon, 228 F.3d 978, 980-81 (9th Cir. 2000) (holding comments about seriousness of defendant’s criminal history made in response to defense attorney’s characterization was breach of agreement to make no sentence recommendation); United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999) (holding introduction of victim impact statement from other case that, inter alia, described defendant as “monster” was breach because “no way to view the introduction of [the] statement other than as an attempt by the prosecutor to influence the court to give a higher sentence than the prosecutor’s recommendation”).

This post is to point out a recent Ninth Circuit opinion that’s another illustration of this principle and that reaffirms the prior cases. The recent case is United States v. Heredia, 768 F.3d 1220 (9th Cir. 2014). The defendant was an illegal reentry defendant who had signed a “fast track” plea agreement that produced a guideline range of 6-12 months and required the government to recommend a sentence at the low end of that range, i.e., 6 months. See id. at 1228-29.. The government mouthed the 6-month recommendation in its sentencing memorandum but then (1) detailed the defendant’s past criminal convictions and conduct, which were already in the presentence report; (2) argued that this criminal history “communicates a consistent disregard for both the criminal and immigration laws of the United States”; (3) argued that “defendant’s demonstrated propensity for drug trafficking and theft-related offenses is also concerning, and an appropriate sentence is warranted to ensure sufficient deterrence to future criminal conduct”; and (4) then argued the defendant “poses a danger to the community because his criminal history includes both drug trafficking and battery.” Id. at 1229.

In a lengthy opinion with some great language, the Ninth Circuit held that saying these things was a breach even though the government’s specific recommendation was the required 6 months. It started with some great general points, like “[t]he integrity of the criminal justice system depends upon the government’s strict compliance with the terms of plea agreements into which it freely enters” and that plea agreements with a joint sentence recommendation provide the valuable benefit of a “united front.” Id. at 1230-31 (quotingUnited States v. Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001)). Then, more specific to what this post is about, the court pointed to the cases cited in the first paragraph above, for the proposition that “[t]he government’s promise to recommend a particular disposition can be broken either explicitly or implicitly.” Heredia, 768 F.3d at 1231. It explained:

The government is under no obligation to make an agreed-upon recommendation “enthusiastically.” Johnson, 187 F.3d at 1135. However, it may not superficially abide by its promise to recommend a particular sentence while also making statements that serve no practical purpose but to advocate for a harsher one. United States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000); Johnson, 187 F.3d at 1135. That is, the government breaches its bargain with the defendant if it purports to make the promised recommendation while “‘winking’ at the district court” to impliedly request a different outcome. United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir. 2001). An implicit breach of the plea agreement occurs if, for example, the government agrees to recommend a sentence at the low end of the applicable Guidelines range, but then makes inflammatory comments about the defendant’s past offenses that do not “provide the district judge with any new information or correct factual inaccuracies.” Whitney, 673 F.3d at 971 (quoting Mondragon, 228 F.3d at 980).

Heredia, 768 F.3d at 1231.

The court then held that what the government had done inHeredia was just like the breaches in Mondragon and Whitney. First, “[l]ike Mondragon and Whitney, all of the aggravating factual information in th[e sentencing] memorandum had already been provided to the district court in the PSR.” Heredia, 768 F.3d at 1232. Second, “there was no reason to believe that the district court was considering imposing a sentence less harsh than the stipulated one.” Id. Third, “[n]or were the government’s statements made off the cuff or in response to commentary or argument by the defense.” Id. The opinion thus suggests some factors to be considered in deciding whether there has been an implicit breach.

Finally, the court reaffirmed the established remedy for a government breach which was the main subject of my prior post. First, it is “simply ‘irrelevant’” whether the district court was influenced by the breach, so it didn’t matter that the district court claimed not to have been influenced. Heredia, 768 F.3d at 1235 (quoting Camarillo-Tello, 236 F.3d at 1028). Second, the fact that the defendant in Heredia had the right to withdraw his plea because the agreement was a Rule 11(c)(1)(C) agreement did not negate the breach, for this “would effectively license the government to violate Rule 11(c)(1)(C) plea agreements with impunity.” Heredia, 768 F.3d at 1235. See also United States v. Partida-Parra, 859 F.2d 629, 635 (9th Cir. 1988) (noting in non-binding plea agreement case that remedy of giving defendant opportunity to withdraw plea “would, in effect, allow the government, any time it might have second thoughts about a plea bargain, to breach the agreement . . . , thereby ‘restoring’ the defendant’s ‘right to trial’ on those charges”). Third, there is more generally no harmless error review; rather, “automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved.” Heredia, 768 F.3d at 1235 (quoting Puckett, 556 U.S. at 141). (Compare the holding in Puckett noted in the first paragraph above that breaches are reviewed only for plain error if they are not objected to.) Lastly, the court reaffirmed the requirement that “further proceedings occur before a different judge.” Heredia, 768 F.3d at 1235.

So Johnson, Mondragon, and Whitney live on. Now it’s Johnson,Mondragon, Whitney, and Heredia. Prosecutors can’t take back with one hand what they give with the other.