On June 27, 2024, the Third Circuit filed a precedential opinion in United States v. Luis Davis, No. 23-1327. Broadly construing the government's arguments as violating the contractual terms of a plea agreement where the parties had stipulated to a sentencing guidelines recommendation at the lowest guideline range, the Third Circuit held that the government breaches plea agreements when it effectively advocates for a sentence higher than the one it promised to recommend.
This opinion showcases why counsel should begin objecting at sentencing hearings when the government edges toward arguments of aggravating factors or expresses skepticism toward a defendant's mitigating evidence in breach of the spirit of a plea agreement.
The defendant in Davis signed a written agreement with the government, pleading guilty. The government agreed to recommend the minimum guideline sentence, which was calculated at 87 months, as "determined by the Court." The parties' sentencing memoranda confirmed with the agreement, recommending the lowest guideline range of 87 months.
However, at the sentencing hearing, the government repeatedly emphasized the defendant's deliberate intent and "unwavering commitment" to commit the crime and the emotional and physical trauma suffered by the victims. The government said the defendant "disregarded what was right," "disregarded what he was inflicting upon the victims" and stressed that he had exploited a position of trust, having learned that the victims had money from a co-defendant who had worked for the victims. In addition, the government emphasized the physical and emotional trauma inflicted on the victims, recounting "in great detail... the assaults, threats, humiliation; the demise of the couple's relationship; the lingering feelings of anger, fear, and resentment; and the loss of security."
The defendant was sentenced to 102 months, at the "mid-to-high" end of the guidelines range. On appeal, the defendant argued that the government breached its promise to recommend a lowest-end sentence, saying that the government's allocution "reads like a recommendation" for a longer sentence.
The government contended that first, the defendant had waived objection to the breach by indicating it had been resolved, or alternatively forfeited the objection by failing to object clearly. Second, the government argued that its ultimate recommendation was consistent with the plea agreement and that the allocation was appropriate to persuade the court to not apply a downward variance.
The Third Circuit held that, because defendant's counsel never expressly withdrew its objection to the government's remarks emphasizing the defendant's conduct and the harm inflicted on the victims, those objections were not waived. To the extent that the objections were forfeited, the defendant's statement that the government was "close to a breach" was an objection within the "flexible, common sense interpretation" used in determining whether a claim of error has been preserved.
Defendant's counsel had, however, waived objections to the government's remarks regarding defendant's mitigating evidence by indicating that she was "comfortable" with the government's position of "not challenging" the evidence. As the two sets of objections did not depend on the same rules or facts, the defendant's counsel's waiver of the mitigating evidence objections did not reach the conduct and harm objections. With one set of objections preserved, the court turned to consideration of the breach claims.
On the breach claim, the Third Circuit held that the government violated the plea agreement by "repeatedly underscoring the reprehensibility of [defendant]'s conduct," though it did not expressly breach the plea agreement because it still recommended a lowest-range sentence. However, "[t]he Government must honor the spirit, as well as the letter of the plea agreement."
Regarding the government's statements that defendant disregarded what was right and exploited a position of trust, the Third Circuit relied on United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989) and United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998) to establish that, "when the Government highlights the reprehensibility of the defendant's conduct or extensively criticizes his character, culpability, or blameworthiness, it essentially recommends a higher sentence."
As to the statements on victim impact, the Third Circuit held that the government violated the plea agreement "by using victim-impact evidence to implicitly support a higher sentence," relying on holdings in United States v. Hodge, 412 F.3d 479 (3d Cir. 2005) and United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004).
The Third Circuit vacated the defendant's sentence and remanded for resentencing with a different district judge, even though there was no error on the sentencing judge's part.
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