Some Caveats on Last Week’s Case

December 2, 2014
By Hanging Out with Carl Gunn


  • Language in United States v. Heredia suggesting some breaches may be cured should be read narrowly; it might apply to a prosecutor’s failure to do something the prosecutor is supposed to do, but can’t apply to the prosecutor having done something the prosecutor isn’t supposed to do.
  • Language suggesting a “mere slip of the tongue or typographical error” can be cured should also be read narrowly; indeed, the case cited – United States v. Alcala-Sanchez, 666 F.3d 571, 576 (9th Cir. 2012) – held that a breach that was the product of an “honest mistake” for which the prosecutor “profusely” apologized couldn’t be cured.
  • Heredia also shouldn’t be read to preclude a defense attorney from emphasizing mitigating factors in a fast track case; the unrealistic possibility that a judge might go below what the opinion characterizes as an “unusually lenient” disposition doesn’t mean there’s an unrealistic possibility that the judge might go above this “unusually lenient” disposition.


As with any opinion, last week’s opinion – United States v. Heredia, 768 F.3d 1220 (9th Cir. 2014) – had some caveats and/or things to be careful about. I thought I’d comment on a couple that I noticed.

First, I noted with just a little concern some dicta in the opinion stating that “‘some breaches may be curable upon timely objection’ to the district court,” Heredia, 768 F.3d at 1235 (quoting Puckett v. United States, 556 U.S. 129, 140 (2009) (emphasis in original)), and offering as examples: “[I]f the prosecution makes a ‘mere slip of the tongue or typographical error,’ United States v. Alcala-Sanchez, 666 F.3d 571, 576 (9th Cir. 2012), or ‘simply forg[ets] its commitment and is willing to adhere to the agreement,’ Puckett, 556 U.S. at 140, the prosecution may cure the inadvertent mistake by promptly discharging its obligations.” Heredia, 768 F.3d at 1235. This could be read more broadly than we’d like, but the cases cited don’t support a broad reading. Most fairly read, the example given in Puckett is of a prosecutor failing to do something he or she promised to do and then finally doing it when reminded. That’s very different from a prosecutor affirmatively doing something that he or she promised not to do. One can ring a bell that hasn’t been rung yet, but one can’t unring a bell that was never supposed to be rung.

The “mere slip of the tongue or typographical error” language inAlcala-Sanchez also can’t be read overly broadly. In particular, it doesn’t mean an honest mistake can’t be a breach, or that eventually correcting the honest mistake cures the breach. The breach actually before the court in Alcala-Sanchez was an honest mistake and was eventually cured at the sentencing hearing with “profuse” apologies from the prosecutor. Alcala-Sanchez, 666 F.3d at 574, 576. The court found a breach nonetheless, stating that “[i]t does not matter that the breach was inadvertent, caused by a heavy workload for government lawyers, or the result of ‘cases get[ting] handed from person to person,’” id. at 576, because “one really cannot calculate how the government’s error and breach may have affected the perceptions of the sentencing judge,” id. at 577.

Another thing to watch for is any effort the government may make to turn Heredia into an argument that a defendant’s emphasis on mitigating factors in a fast track case is a breach. It’s true that the court’s reasons for finding the government’s emphasis on aggravating facts to be a breach included the facts that “there was no reason to believe that the district court was considering imposing a sentence less harsh than the stipulated one,”id., 768 F.3d at 1232, and that sentencing recommendations included in a fast track agreement like that in Heredia are “routine,” id., 768 F.3d at 1234. But this reasoning doesn’t extend to bar a defendant’s emphasis of mitigating factors in a fast track case. A fast track plea agreement provides what the court in Heredia characterized as “unusual leniency.”Id., 768 F.3d at 1237. There is no reason to be concerned about a less harsh sentence when there is already this “unusual leniency.” But the “unusual leniency” does give reason to be concerned about a more harsh – or simply less lenient – sentence. Defendants legitimately can – and should – emphasize mitigating factors – simply to lock in the “unusual leniency” being provided.


In sum, don’t let them use Heredia against you. It doesn’t mean you can’t emphasize your client’s mitigating facts and it doesn’t mean the government can get out of the breach through an “honest mistake” or an “it doesn’t matter because now we’ve fixed it” defense.