Friday, April 22, 2005

Government's Breach of Plea Agreement Leads to Resentencing

United States v. Vaval, No. 04-121-cr (April 12, 2005)(Winter, Sotomayor, and Parker)(op. by Winter). In this opinion, the Court addressed two important issues regarding guilty plea practice – the sufficiency of the allocution and the government’s obligations under a plea agreement.

Troy Vaval and his confederates made arrangements to sell firearms to a confidential informant. When the CI showed up to close the deal, Vaval and the others robbed him, stealing the buy money, his wallet and jewelry, and his car.

Vaval pled guilty to one count of robbery of federal property with a dangerous weapon, pursuant to a plea agreement. The agreement listed the relevant statutory maxima, but had "N/A" next to the line for restitution. In addition, although the government retained the right to describe to the court Vaval’s criminal conduct, it agreed to "take no position concerning" where within the applicable guideline range Vaval should be sentenced, and promised not to seek an upward departure. The agreement excused the government from these provisions only if new information relevant to sentencing came to light or Vaval breached the agreement.

During the plea allocution, the court never advised Vaval that he faced a mandatory restitution order. Later, in response to a question from defense counsel, the government ratified its promises that it would not engage in sentencing advocacy.

At sentencing, however, the prosecutor became an advocate. First, he argued for a higher role adjustment than that contained in the plea agreement, claiming that the mistake was due to a misunderstanding of the law. The court rejected this, and adopted the range contained in the plea agreement. Then, when given a second chance to speak, the prosecutor (1) argued that criminal history category to which Vaval was assigned was too low, characterizing his history as "appalling,"(2) called the defendant’s own statement in mitigation "disingenuous," and(3) gave a lengthy, and most damning, description of the offense and Vaval’s conduct, asking the judge to "consider all of that" when deciding on the appropriate sentence.

The judge sentenced the defendant at the top of the range.

The Court’s Decision
Vaval’s first argument was that he was entitled to get his plea back because he was not advised by the court that he faced mandatory restitution. The Court of Appeals made short work of this, noting that the presentence report correctly indicated that full restitution was mandatory. Although Vaval could have moved to withdraw his plea when he saw that, he did not, which the Court viewed as a sure sign that he would still have gone ahead with the plea if he had been advised of the restitution requirement by the district judge. The Court thus concluded that the Rule 11 violation did not amount to plain error.

The Court was a good deal more sympathetic to his argument that the government had breached the plea agreement at sentencing. Although the agreement permitted the government to "advise" the court of information relevant to sentencing, including Vaval’s criminal conduct, here the prosecutor went further, for example in his highly negative characterizations of Vaval’s criminal history and contrition. Also of significance was the fact that the prosecutor’s comments came after the district court had already calculated the guideline range, leaving little doubt that the prosecutor’s true intent was either to obtain a departure or to influence the court’s decision about where to sentence Vaval within that range, both of which were clearly barred by the agreement.

The Court concluded by going into an detailed examination of the available remedies. There are some cases where no remedy is appropriate – for example, where the breach has previously been cured by specific performance, or where the breach iwas so minor that it did not cause the defendant to suffer any meaningful detriment.

Where the government has breached a pledge to refrain from sentencing advocacy, some remedy is required, and the defendant need not affirmatively show that his sentence was increased as a result of the breach. In this situation, the remand can be either for resentencing before a different judge or withdrawal of the plea depending on the circumstances.

In Vaval’s case, the Court concluded that a resentencing before a different judge was the appropriate remedy because it would fully cure the breach.


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