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Eighth Circuit: Government’s Endorsement of Offense Level Above Stipulation Constitutes Breach of Plea Agreement: Brown, 20-2170

In the Brown case, the Eighth Circuit cast doubt on whether the prosecutor could ever cure a breach of plea agreement.

Brown's Firearm Case and Plea Agreement

Brown pled guilty to knowingly possessing a stole firearm.  The parties agreed that “[t]he applicable Guidelines section for the offense ... is  U.S.S.G. § 2K2.1(a)(7),” with “a base offense level of 12.” By contrast, the Presentence Investigation Report calculated a base offense level of 20… This disparity came from the PSR’s conclusion that Brown was a prohibited person whose offense involved possessing a semiautomatic firearm capable of receiving a large-capacity magazine. See  § 2K2.1(a)(4)(B). Brown objected to this. The Government did not, instead stating in its sentencing memorandum that it “believe[d] that the range calculated by [the PSR] [was] appropriate.”

At the first of two sentencing hearings, Brown objected to the PSR’s base-offense-level calculation stating that it was higher than what the parties had agreed to in the plea agreement.  The government stated that the PSR’s calculation was correct even though they acknowledged the plea agreement.  The prosecutor also stated that they thought that Brown would have a hard time overcoming the “large capacity magazine” claim.   The prosecution also stated that they could not prove the “large capacity magazine” portion, causing the court to postpone the hearing.

At the second hearing the government put a witness on the stand to prove the large capacity magazine enhancement.  The Court asked the government for a sentencing recommendation and the government stated:

“I would ask you to stick to the plea agreement. ... [D]efense counsel ... believe[s] it may possibly be a breach of the plea agreement on my part if I argue for the higher guideline sentence than what I had argued for in the plea agreement. So because of that, Judge, I told [defense counsel] that I will stand silent when it comes to a recommendation, because he believes it possibly may be a breach of the plea agreement. I don’t think it would be, but be that as it may ....”

Defense counsel argued that the government breached the plea agreement by filing a sentencing memorandum endorsing the PSR’s calculation.  The court seemed to conclude that the government did not breach the plea agreement.  The court then overruled Brown’s objection and adopted the PSR (including the higher range of punishment for the level 20).  Brown appealed indicating that the government breached the plea agreement.

Government's Breach of Plea Agreement

The Court referenced their prior ruling in United States v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009): “When the offense level is part of the inducement or consideration for pleading guilty, the government breaches a plea agreement by advocating a higher offense level than that specified in the agreement.”

The court noted that the prosecutors did that very thing here:  “In the plea agreement, the Government agreed to a base offense level of 12 under  § 2K2.1(a)(7). Yet, in its sentencing memorandum, it said that the PSR’s base offense level of 20 under  § 2K2.1(a)(4)(B) was ‘appropriate.’ In doing so, the Government advocated for a different applicable guidelines section and higher base offense level than it had agreed to, thus breaching the plea agreement.”

Can the Government "Cure" the Breach of the Plea Agreement?

The government indicated that they cured a breach because at the end of the second hearing, the government asked the court to “stick to the plea agreement.”  The court noted that the government did not present any caselaw.  However the court also noted that ,  “other ‘circuits require that the government offer an ‘unequivocal retraction’ of its erroneous position to sufficiently cure a breach… In the same breath as telling the district court “to stick to the plea agreement,” the Government maintained that it was allowed to argue for a higher-than-agreed-to calculation.’”  Further, “at the first sentencing hearing, the Government ‘proffer[ed]’ facts establishing a higher base offense level than the plea agreement stipulated and essentially invited the district court to go on a fishing expedition for additional supporting facts.”  As a result, the court determined that the government’s actions belied the idea that they had cured any breach.

Based on the above, the court vacated Brown's sentencing and remanded the case for resentencing before a different district court judge.

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