United States v. Rubbo, 2020 WL 416410 (10th Cir. January 27, 2020) (CO): On appeal Rubbo complained that the government breached the plea agreement by recommending a 15% departure rather than the 20% departure called for in the agreement. The panel held the express language of the agreement shows that the government did not "unequivocally" promise to recommend a departure of a certain percentage.

The panel explained the government’s promises were conditional. First, Rubbo had to fully and truthfully cooperate with the government. While on bond Rubbo contacted a known witness to continue his fraudulent scheme and did not tell the government he had done so. Rubbo did not satisfy this condition. Second, the government qualified its departure recommendation by saying it "expected to recommend a 20% departure." Third, the government retained the "sole discretion" to evaluate Rubbo’s cooperation. Given how the government’s obligations were conditioned, the panel found the government had not violated the plea agreement.