Some More on Breaches of Plea Agreements

November 12, 2013
By Hanging Out with Carl Gunn



  • The government can’t cure a breach – even if it’s an honest mistake – by correcting its recommendation at some later point in the proceedings.
  • Harmless error analysis doesn’t apply to breaches of plea agreements, so it doesn’t matter if the court says the breach didn’t affect it and it wasn’t going to follow the recommendation anyway.
  • Remember the remedy you’re entitled to – transfer to a different judge who hasn’t been exposed to the breach and specific performance before that judge.



Being back on the topic of breach last week reminded me of another piece of case law I’ve run across in my research that you might not be aware of just off the cuff. That’s a very good Ninth Circuit case that deals with prosecutor breaches of plea agreements that are honest mistakes.

The case is United States v. Alcala-Sanchez, 666 F.3d 571 (9th Cir. 2012). What the government did in that case was directly breach the plea agreement in its written sentencing papers, but then clearly and unequivocally correct its error, very apologetically, at the actual sentencing hearing. See id. at 573-74. The Court held this later correction did not cure the original breach.

[W]e conclude that the government’s later actions did not cure its earlier breach. Alcala had lost the benefit of his bargain that contemplated that the government would present a united front with him in recommending a total offense level of 12 and a 33-month sentence. Although the government in the end gave the court the correct recommendation stating that Alcala deserved the benefit of the bargain, the district court might well have thought from the government’s initial submission and its qualified statements in open court that it truly thought Alcala deserved more but it was required to assent to the plea agreement provision. Because the district court has an independent duty and freedom in rendering sentence, the harm to Alcala from the government’s initial breach and subsequent attempt to cure it is not calculable.

Id. at 576.

There’s also other case law establishing more generally that a breach can’t be transformed into “harmless error” by a district court’s explanation that the breach hasn’t affected it. As the court explained in United States v. Johnson, 187 F.3d 1129 (9th Cir. 1999): “Although the district court stated at the sentencing hearing that it was prepared to sentence Johnson to the high end of the sentencing range even before the actual sentencing hearing took place, ‘[t]he harmless error rule does not apply to the law of contractual plea agreements.’” Id. at 1135 (quotingUnited States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994)). Similarly, the court stated in United States v. Mondragon, 228 F.3d 978 (9th Cir. 2000) that “[i]t is of no consequence that the district judge did not construe the prosecutor’s statements as a ‘comment on the sentence’ or a ‘recommendation with respect to sentencing,’ or that the statements may have had no effect upon the sentence.” Id. at 981. Then a third example can be found inUnited States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001), in which the court held that whether the district court would have been swayed by the recommendation the government should have made under the plea agreement “is irrelevant.” 1028.

What you can and should do in these circumstances – absent some other reason not to – is move for transfer of the case for specific performance in front of a judge not exposed to the initial breach – and therefore not even speculatively affected by it. For more on the right to that remedy, see a post I put up last year – “You Can Make Them Fix That Breach! Really Fix It.” – through the August 2012 link at the right.