Remand for New Sentencing Before Different Judge Granted Based on Gov't Violation of Plea Agm't

U.S. v. Cachucha, 10th Cir. No. 06-2215 (WL number not available) (4/26/07) - The 10th holds that the prosecutor violated the plea agreement stipulation to an offense level of 12 in a 2000 involuntary manslaughter case when he repeatedly complained about how low the 2000 guidelines were and stated the judge's initially-imposed upward departure was supported by the grounds the judge (Johnson) relied upon. In dicta, the 10th helpfully stated that the defendant's ex-post-facto/due process objections to the d.ct.'s upward variance under Booker discretion based on post-offense guidelines, (among other things), were not necessarily foreclosed by 10th Circuit law, because no court had yet decided whether due process is violated when a post-Booker sentence is higher than might realistically have been imagined at the time of the pre-Booker offense. Also in dicta, the 10th opined that the d.ct.'s reliance for the upward variance on New Mexico sentencing practice seemed to violate U.S. v. Branson, 463 F.3d 1110, 1112 (10th Cir. 2006), which held state sentencing practices were irrelevant.

U.S. v. Martinez, 10th Cir. No. 06-1226 (WL number not available)(4/26/07)(unpub'd) - "Minor discrepancies" [the 10th's description] between the passenger's and the driver's travel story, e.g. one said their destination was 20th Street and the other said 20th Avenue, supplied reasonable suspicion to extend the traffic detention.