Saturday, January 05, 2008

Defendant Breached Plea Agreement in Seeking Departure for Overrepresentation and Downward Variance Based on Personal Characteristics

In U.S. v. Williams, No. 05-4153, Dec. 31, 2007, the Circuit held that a defendant who sought departures for over-representation of criminal history and mitigating personal circumstances, and a downward variance based on personal circumstances, breached his plea agreement which stated “neither party will argue for the imposition of a sentence outside the Guidelines range that results from the agreed total Guidelines offense level.”

The court first established the same de novo standard of review in considering a defendant's breach of a plea agreement as with a government breach case. The government bears the burden to prove the breach by a preponderance of the evidence.

Next, in finding that Williams breached the plea agreement, the court rejected his arguments that 1) post-Booker, defendants should be able to argue for departures and non-Guideline sentences, especially because the sentencing courts are required to consider the factors set forth in § 3553 to determine whether a non-Guideline sentence is appropriate and 2) he was not precluded from arguing what the appropriate criminal history category should have been because the plea agreement did not stipulate a specific criminal history category. First, the stipulations in the agreement unambiguously prohibited Williams from making downward departure motions. Thus, the fact that Booker made the Guidelines advisory, and therefore enabled district courts to depart from the Guidelines, has no bearing on the fact that Williams agreed not to make such arguments. Second, Williams' did not dispute that his criminal history was correctly calculated under the Guidelines but argued that, notwithstanding that proper calculation, he was entitled to receive a departure under the Guidelines on the ground that a criminal history category III overstated his criminal history. Thus, when Williams argued about his criminal history, he was explicitly seeking a departure notwithstanding that the plea agreement unambiguously prohibited departure requests.

The court vacated the sentence imposed and remanded to the District Court for re-sentencing before a different judge, pursuant to the plea agreement.

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