Prosecutors Violated Plea Agreement
Warren's Plea and First Appeal
Warren pled guilty to felon in possession of a firearm with a written plea agreement. This agreement indicated the government was to “recommend that the court impose a sentence within the range and of the kind that the guidelines set.” The plea agreement also said that the government “had an independent obligation to avoid “suggest[ing] in any way that a variance was appropriate.” After the plea agreement, the district court notified Warren that they were considering an upward variance.
The court sentenced Warren to 120 months in prison, doubling the high end of Warren’s guidelines range. Warren appealed, stating the district court relied exclusively on his criminal history to vary upwards.
The 6th Circuit agreed stating ““because the Guidelines already account for a defendant's criminal history,” the district court's “extreme variance” based solely on Warren's criminal history was “inconsistent with the need to avoid unwarranted sentence disparities.”
At resentencing the district court circulated a notice of a possible upward variance. At sentencing the court asked the government’s general position. The prosecutor indicated that the government entered into a plea agreement and that they had no intention of violating. Next the government indicated awareness of Warren’s prior convictions but not about the conduct that gave rise to the same.
The conduct at issue was two attempted felonious assaults that were based on shootings. The first felonious assault involved him shooting two people and the second incident involved shooting at a vehicle that contained Warren’s own family members.
The prosecutor stated “So I just want to make sure that the court is aware that the government did not have that information at the time that it entered into the plea agreement and quite probably would have made different recommendations had it known that information.”
Warren’s counsel argued that this was a violation of the plea agreement. The court disagreed, stating that the court construed the government's comment simply as explaining “why and how it is they came about to enter the [plea] agreement.”
The court eventually sentenced Warren to 96 months in prison. Warren appealed, stating that the government breached the plea agreement.
The 6th Circuit's Decision
The Court noted that when you look at the fact that “the government here committed itself not to in any way “mention [a variance] as something to think over,” “bring [a variance] to the mind for consideration,” “propose” or “mention” a variance “as a possibility,” or put a variance “forward by implication.”
The court indicated that the government did not keep their promise:
“The government told the court it likely would have made a different recommendation had it known Warren shot at multiple people, severely injuring one. At the very least, this brought a variance forward by implication—the remark cast doubt on the adequacy of the Guidelines range and injected reservations about the plea agreement itself. It relayed to the court that the government agreed to the plea with incomplete information and no longer felt a Guidelines sentence was appropriate. And by undermining the Guidelines range as an appropriate sentence, the government “suggested” in some way, even if indirectly, that the court should vary.”
The court went on to note that the government bookended their remarks with a description of the crimes that Warren committed. This included a statement to not agree to Warren’s guidelines range again if given the chance as well as why there would not be agreement to those guidelines. “That's especially true because the district court already had access to the information the government relayed—it was in Warren's presentence report. So the government's conduct “undoubtedly constituted advocacy, because the government was not providing any new factual information to the district court.”
The court also noted that in the broader context, the government made its remarks after the court invited the parties to comment on whether it should impose a variance.
“In other words, the government specifically identified the defense's advocacy for a Guidelines sentence as the basis for its comments, and it pointedly undermined the claim that it agreed the range was appropriate. That the prosecuting attorney repeated her views that the government was having second thoughts about the plea agreement even after defense counsel objected leaves little doubt as to the intent of the government's comments at sentencing.”
Further, the court noted in Santobello that whether the government’s breach actually influenced the court is irrelevant. ““when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Warren's Resentencing for Plea Brings New Judge
The court stated that although this was not a reflection on the judge, “it is “necessary for defendants to get the benefit of the bargain, and to preserve the appearance of an impartial judiciary—one that is not influenced by the prosecutor's previous breach.”
The Sixth Circuit Reversed the ruling of the district court and remanded the case back down with instructions to be resentenced by a different judge. No. 20-3045