Ninth Circuit Rules Prosecutor's Inflammatory Remarks Violate Plea Agreement

When a defendant enters into a plea agreement with the government, he is entitled to the benefit of that bargain.  If the government fails to live up to its end, the appropriate remedy is normally resentencing before a different judge – a judge that was not influenced by the government’s broken promises.  Last month, the Ninth Circuit ruled that the government must also live up to the spirit of its promises.  It also ruled that in some cases additional relief is appropriate.  In United States v. Heredia, 2014 WL 5018109 (9th Cir. October 8, 2014), the prosecution entered into a plea agreement pursuant to Rule 11(c)(1)(C) in which it agreed with the defense that a six-month sentence was the appropriate disposition in that illegal reentry case.  The government also agreed not to suggest that the court not impose the agreed-upon sentence.  Under Rule 11(c)(1)(C), a court is required either to impose the agreed sentence or to give the defendant the option of withdrawing his plea.  In this case, the prosecution asked the court to accept the agreement and to impose the agreed-upon sentence, but went out of its way to make inflammatory references to the defendant’s prior criminal history.  Although defense counsel objected, alleging a breach in the agreement, the district court denied the motion, ruling that it was not influenced by the prosecution’s statements.  The district court then rejected the agreement and offered the defendant the opportunity to withdraw his plea.  The defendant chose to plead open – without an agreement – and received a sentence of 21-months.  On appeal, the Ninth Circuit agreed that the government had violated its agreement and remanded for resentencing before a difference judge.  In doing so, the Court noted that while the normal remedy when the government violates a plea agreement is remand for sentencing before a different judge, the appropriate remedy in this case should have been to vacate the conviction as well as the sentence so as to return the defendant to the same position he was in before the government’s breached its agreement.  Because the defendant was already serving a judgment of conviction, simply vacating his sentence would not make it possible for him to withdraw his plea should the new judge also reject the agreement.  Rather than grant the appropriate remedy, however, the court remanded only for resentencing, since that is what the defendant requested. Should the new judge also reject the agreement, the defendant should consult with an experience post-conviction attorney to consider his options.  United States v. Heredia, 2014 WL 5018109 (9th Cir. October 8, 2014).