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Gov did not breach plea agreement by withdrawing 5K motion

In US v. Schwartz, No. 05-4978 (Jan 10, 1008), the 3rd Circuit rejected Schwartz's claim that the government breached its plea agreement and acted in bad faith when it withdrew its previously filed motion for downward departure under USSG 5K1.1.

Schwartz pleaded guilty to conspiracy to distribute drugs and agreed to cooperate with the government pursuant to a plea agreement in which the government agreed to file a downward departure motion under 5K1.1 in exchange for the cooperation. Schwartz cooperated, and the government filed a downward departure motion one week prior to sentencing. The next day, however, DEA agents arrested Schwartz for violating his bail conditions by using drugs, and found about $4,500 worth of meth, plus a triple beam scale, in his residence. At the sentencing hearing the government moved to withdraw its 5K motion, and the court granted the motion.

The 3rd Circuit upheld the district court on the ground that the plea agreement was predicated on Schwartz's continued cooperation. The agreement specified that it was a condition of the agreement and an obligation of the cooperation that "defendant not commit any additional crimes." The agreement also allowed the government to withdraw any 5K motion if the defendant failed to cooperate. The commission of the additional crime of drug possession thus constituted a failure to continue cooperating, and triggered the government's right to withdraw the 5K motion.

The Circuit held that "the government may withdraw a downward departure motion when a defendant agrees not to violate the law and the written plea agreement reserves to the government the right to withdraw the motion upon that occurrence."

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