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Government’s Breach of Plea Leads to Vacatur of Sentence on Plain Error: Malone

The Eleventh Circuit held that the government’s actions were a breach of the plea agreement, even on plain error review.

Facts:  Malone Plead Guilty to Charges After Alleged Bond Violations

Malone was charged with charges of Fraud, transportation and sale of a stolen motor vehicle.  He was arrested and placed on bond with a condition that he not violate the law again. Shortly afterwards he was accused of listing vehicles for sale that he did not own and making a fraudulent sale of a vehicle in January 2020. A warrant was issued for his arrest and the probation officer recommended that his bond be revoked. He eventually filed a notice stating that he intended to change his plea to guilty on the first set of cases.

Malone and the government entered into a plea agreement to plea to some of the original charges. The government indicated that they had the right to oppose a two-level reduction for acceptance of responsibility if “it received information that Malone acted inconsistently with the acceptance of responsibility “between the date of the plea hearing and the date of the sentencing hearing.’”

The government also agreed to move for a one level reduction for acceptance of responsibility “[p]rovided the defendant otherwise qualifies, and that the defendant does not, before the date of the sentencing hearing, either personally or through the actions of the defense attorney on behalf of the defendant, take any action inconsistent [with] the acceptance of responsibility.”

In exchange, “Malone agreed ‘to refrain from taking any action inconsistent with [his] acceptance of responsibility for the offenses to which [he was] pleading guilty,’ not to commit any other offenses while awaiting sentencing, and to provide truthful information to probation and the district court.”

The probation officer recommended against any guideline adjustment for acceptance of responsibility and ultimately recommended a total offense level of 23 and a criminal history category of III for a recommended guidelines range of 51-71 months of imprisonment. Malone filed a sentencing memo indicating that he had abided by the plea agreement and with the acceptance of responsibility points his offense level would be 20 and his guideline range would be 41-51 months.

At sentencing Malone requested a three-level reduction for acceptance of responsibility, arguing that “if the district court granted him the first two points for acceptance of responsibility, the government had agreed to recommend the third.”

The government opposed any reduction for acceptance of responsibility.  Specifically, the government “expressly disavowed relying for its position on Malone's statements to the probation officer when the probation officer was preparing the PSR. Indeed, the government asserted that it had not been privy to any conversations during Malone's interview with the probation office so its position on acceptance of responsibility was based ‘solely on the conduct that occurred [in January 2020] after Mr. Malone was released’ on bond in November 2019. The government argued that Malone's January 2020 offense (which, as we have mentioned, occurred post-arrest but pre-plea) was very similar to his indicted offenses and demonstrated a lack of acceptance of responsibility.”

The government also opposed a downward variance asked for by Malone, indicating that while they recommended a 66-month sentence, they not think it was enough and if they had it their way, the sentence would be double or triple that.

The district court declined any deduction for acceptance of responsibility and denied the request for a downward variance. The court sentenced Malone to 71 months.

Appeal:  The Government's Actions were a Breach of the Plea

On appeal, Malone argued that this was a breach of the plea agreement: “He assert[ed] the government breached the plea agreement in two ways: (1) by opposing an acceptance of responsibility reduction for reasons that violated the plea agreement, and (2) by paying mere lip service to recommending a sentence within the guidelines range but then also advocating for a higher sentence.”

The court indicated that this would be subject to the plain error test. The court can find plain error when “(1) an error has occurred, (2) the error was plain, and (3) it affected then defendant's substantial rights, and if those prongs are met, we then have discretion to correct the error if it (4) seriously affected the fairness of the judicial proceedings.”

Court: The Government's Actions were a Breach of the Plea

The court noted that the plain language of the agreement shows that the government “implicitly agreed not to object to the two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) unless it received information that Malone acted inconsistently with acceptance of responsibility “between the date of the plea hearing and the date of the sentencing hearing.”  The court indicated that the government knew about Malone’s post arrest, pre-plea conduct that they cited when they opposed his acceptance of responsibility reduction at sentencing. Although they stated that Malone’s “alleged continued criminal conduct and statements to probation were inextricably intertwined, it did not assert this before the district court and instead expressly relied solely on Malone's criminal conduct before he entered into the plea agreement. In fact, as we've noted, at sentencing, the government explicitly denied relying on Malone's alleged statements to the probation officer because the government wasn't present when Malone made them.”  Based on all of this the court determined that the government breached the plea agreement by arguing against the acceptance of responsibility reduction based on Malone’s pre-plea conduct.

The court indicated that this also affected Malone’s substantial rights.  The court noted that “because the district court explained that it relied in part on the government's argument in denying the acceptance-of-responsibility adjustment, we cannot say that Malone ‘likely would not have obtained’ the reduction for acceptance of responsibility, regardless.”

Finally, the court indicated that the government’s violation of the plea agreement “seriously affected the integrity, fairness, or public reputation of the proceedings.”  The court held that this was so because of the government’s violation of the plea agreement both in their objection to the reduction for acceptance of responsibility and also because they argued that if the government had their way that the sentencing recommendation would have been double or triple the amount that was suggested.  The court indicated that the government’s repeated clear violations of the plea agreement “seriously affected the fairness, integrity and public reputation of judicial proceedings.”

The Eleventh Circuit exercised their discretion to vacate the sentence and remand for resentencing before a different judge. No. 20-12744

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