Gov't Breach of Plea Agreement Requires New Sentencing

U.S. v. Vandam, --- F.3d ----, 2007 WL 1982155 (10th Cir. July 10, 2007)

The government breached the plea agreement that it would recommend the low end of the calculated guideline range when it argued for a sentence higher than the low end of the range the district court finally determined was appropriate. The plea agreement did not bar the government from arguing for an overall higher guideline range and the low end of that range, but once the district court determined the range, the government was bound to recommend the low end of that range. The PSR inclusion of the terms of the government’s agreement did not substitute for the government actually making that recommendation.

Although the district court imposed a sentence at the lowest point of the guideline range–the very sentence the government should have recommended–harmless error does not apply to issues of breach of plea agreements. Santobello requires an automatic remand upon a breach, thus not contemplating harmless error review.

Although the choice of remedy is up to the court--withdraw the guilty plea, sentencing in front of a different judge, or specific performance in front of the same judge–if the defendant does not want to withdraw the plea, the court appears to follow the remedy requested by the defendant. Here it was appropriate to order specific performance in front of the same judge.