United States v. Whitney

A breach of a plea agreement by the government occurs when, as part of the plea bargain the government promises (1) not to divulge information disclosed during cooperation with the government and (2) to urge a sentence at the low-end of the guidelines, and then at sentencing the prosecution divulges the admissions and provides arguments for the sentencing judge regarding the seriousness of the defendant's criminal history.

Whitney entered a guilty plea to the charge of "conspiracy to defraud the government by filing false claims," under 28 U.S.C. § 286. In exchange for guilty plea, the government promised to "recommend to the court that Whitney be sentenced to the low end of the applicable guideline range for his offense, and that in its effort to establish the applicable sentencing guideline range it would not use any incriminating information divulged by Whitney during the course of his cooperation." However, the presentence report determined Whitney should receive a "two-level upward role adjustment" due to his criminal history, his leadership role in the completion of the fraudulent tax forms for him and other inmates, and offense level. The probation officer recommended an upward departure sentence of 87 months and the Assistant U.S. Attorney ("AUSA") recommended the low end of the guidelines as promised. The sentencing judge, noting the presentence report and Whitney's "impressive" criminal history, and the offense level, "departed upward from the guidelines to impose a sentence of 87 months." The defendant appeals claiming the government breached its plea agreement. The Ninth Circuit held that the government breached its agreement in two respects. First, the AUSA told the sentencing court that the defendant supplied information during cooperation that supported the allegation he had a supervisory role in the offense. Secondly, the AUSA argued for a sentence "greater than the terms of the plea agreement." The Ninth Circuit reasoned that the AUSA's arguments "could only have been intended as an argument for a sentence greater than the within-guideline sentence requested by the defense." Further, the Ninth Circuit also held that the government's conduct affected Whitney's "substantial rights and the integrity, fairness, [and] public reputation of the judicial proceedings" reasoning that (1) the government's disclosure that Whitney had a supervisory role in the crime led to the court to impose a leadership enhancement factor and (2) the government's breach of the plea agreement is a "serious violation of the integrity of the plea bargain process and the judicial system." Sentence VACATED and REMANDED for resentencing.