Friday, December 02, 2005

Government, by not considering downward departure, breached plea agreement

The Third Circuit, in US v. Floyd, held that the government, under a plea agreement, was required to consider whether defendant’s assistance merited a downward departure, even though the agreement stated that the government "may request" a downward departure if the defendant renders substantial assistance.

Floyd and the government entered a plea agreement where Floyd pled guilty to a drug crime that carried a statutory maximum of five years. The agreement also stated that the government "may request" a downward departure for Floyd’s cooperation if Floyd "renders substantial assistance." After entering her plea, Floyd traveled to speak with one of her co-defendants before his trial. The government conceded that this conversation likely led to his guilty plea. Before sentencing, the PSR reported Floyd’s guideline range to be 292-365 months, substantially more than the 60 months permitted by Floyd's plea bargain.

At sentencing, the government did not recommend a downward departure because of the substantial difference between her guideline range and her bargained for statutory maximum sentence. The district court ultimately disagreed with the offense level calculations and found her guideline range to be 41-51 months. The district court then sentenced her to 48 months.

Floyd appealed, arguing that the government acted in bad faith by not considering a downward departure for reasons outside of the plea agreement. The Third Circuit first noted that plea agreements are "contractual in nature." The Court stated that a defendant must show by a preponderance of the evidence that the government violated the plea agreement. Also, any ambiguities are to be resolved in favor of the defendant, due to the greater bargaining power enjoyed by the government.

The Third Circuit assessed the language of the entire plea agreement, stating, "under contract law, the court must read Floyd’s plea bargain in a manner that gives meaning to each provision." Therefore, despite the plea agreement’s language that states that the government "may" request a downward departure if Floyd renders substantial assistance, the Court found that Floyd had an expectation that the government would request a downward departure if she rendered substantial assistance so long as she did not otherwise breach the agreement or commit another offense. This reading resulted from the agreement’s language stating that, if Floyd renders substantial assistance, the government "may decline" to recommend a downward departure for only these two reasons. According to the Court, if unfettered discretion was afforded to the government, such discretion would completely render this other language meaningless.

The Court further determined that the government’s reasoning for declining to recommend a downward departure for reasons extraneous to the plea agreement failed to meet the good faith requirement as set out in United States v. Isaac, 141 F.3d 477 (3d Cir. 1998). The Court found that the government cannot try to avoid performance on the contract simply because it made a mistake in calculating what Floyd’s guideline range would have been. Thus, the Court determined that Floyd was entitled to an evidentiary hearing on whether her assistance was warranted the government’s recommendation for a downward departure.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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