A defendant’s sentence for conspiracy to commit mail and wire fraud was vacated because the government breached the plea agreement by endorsing the higher guidelines calculation in the PSR after having agreed to a lower calculation in the plea agreement, and the breach affected the defendant’s substantial rights as there was a reasonable probability the outcome would have been different absent the breach.
Alejandro Cortés-López pled guilty to conspiracy to commit mail fraud and was handed a 24-month prison sentence, despite a plea agreement with the government for 24 months of probation. The court justified the sentence of imprisonment based on the loss of over $5 million in the Presentence Investigation Report (PSR). However, the amount in the plea agreement said $750,000, and the government failed to correct the court at sentencing.
Cortés-López argued on appeal that the government’s actions at sentencing effectively breached the plea agreement’s terms, which said both parties would stipulate to a sentence of probation, regardless of the loss amount determined in the PSR.
Did the government’s failure to speak up at sentencing and advocate for the plea agreement’s terms breach the agreement? Plea agreements are contracts. See Santobello v. New York, 404 U.S. 257, 261 (1971). This means that contract laws and rules apply to plea agreements, and the terms of the agreement weigh against the person gaining the most out of the contract. “The government, then, must serve more than simple lip service to, or technical compliance with, the terms of a plea agreement, in part because the defendant is entitled to both the benefit of the bargain struck in the plea deal and to the good faith of the prosecutor,” the court said.
Furthermore, prosecutors are “duty-bound to carry out the letter and spirit of the government’s plea agreement,” the court said, with a “concurrent and equally solemn obligation to provide relevant information to the sentencing court.” In other words, the government had a duty to correct any errors in the information provided to the court in the PSR.
The erroneous loss amount in this case meant a 10-point increase in the offense level. While the plea agreement called for only probation, the court was not bound by the agreement. That is, it was not a binding agreement under Rule 11(c)(1)(C). So, the court had the authority to impose any sentence up to the statutory maximum.
But this case was not about the court’s authority to impose a prison sentence, instead of probation, but about the government’s failure to abide by the plea agreement’s terms:
Given the great disparity between probation’s loss amount calculus and the drastically lower loss amount figure the parties’ plea deal contemplated, and given the government’s affirmative assent to probation’s figures, the district court was left to speculate about what rationale might reasonably support such a seemingly off-kilter, well-below guidelines recommendation. Put differently, the government’s failure to provide at least some explanation for its decision to lend its prestigious imprimatur to such a dramatic downward variation likely caused the district court to view the government’s “stand by” statement as just hollow words, undermining any notion that the government viewed the plea agreement as fair and appropriate. Here, the agreed recommendation in the plea agreement called not for a small difference in degree of punishment but a categorical difference in kind: probation v. prison.
Finding plain error (because defense counsel didn’t object to preserve the issue for appeal), the court vacated the criminal judgment and remanded the case to the district court under a different judge.
How to use this case: If your client has the option to appeal, that is always the best option. If, however, the time to appeal has passed, a postconviction motion under 28 U.S.C. § 2255 is an option, but the procedure for such is a bit convoluted. To avoid any procedural bars, the motion would have to argue that counsel was ineffective for failing to challenge the breach at the proper time. While the plain-error and ineffective-assistance standards are not the same, they are similar enough that the argument in this case could frame a postconviction argument in a § 2255 motion. Contact me if you want to save time and money applying this case to your client.
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