U.S. v. Franklin

701 Fed. Appx. 575

Ninth Circuit Court of Appeals

Decided on May 11, 2017

Issue:

Government Breaches Plea Agreement at Sentencing

Whether 1) the Government breached the plea agreement where it agreed to recommend a base offense level of 24, but in sentencing applied a base offense level of 26 while entreating the court to “vary downward” from the total offense level, and 2) whether the government’s breach voids the appeal waiver.

Holding:

Government Breach of Plea Agreement Does Not Void Appeal Waiver

The Court held that 1) although the Government did breach the plea agreement, the breach did not affect the defendant’s substantial rights and did not amount to plain error; therefore, 2) his appeal weaver is enforceable. 

Facts:

Andre Franklin appealed his 60-month sentence following a guilty plea to distributing crack cocaine. Franklin argued that the Government breached the terms of the agreement by not recommending that he receive a base offense level of 24 as specified in the agreement. At sentencing, the Government instead recommended that a base level of 26 was “technically accurate” due to “relevant conduct,” where police seized controlled substances and a gun seven days after Franklin’s offense conviction. The Government entreated the court to “vary downward” from the total offense level of 26 and “impose a sentence consistent with the parties’ plea agreement by applying a base offense level of 24.” 

Analysis:

Government Did Breach Agreement

The Ninth Circuit found that in recommending a base offense level of 26, the Government did breach the plea agreement. However, the defendant did not object at the time of sentencing so the court reviewed the issue under a plain error standard of Fed. R. Crim. P. 52(b).

Plain Error Review

To prove his appeal waiver was invalid due to plain error, the defendant must prove “1) error; 2) that was plain; 3) that affected substantial rights; and 4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings” (U.S. v Whitney, 673 F.3d 965, 970 (9th Cir. 2012)). The Ninth Circuit found that though the Government contravened the guarantees of the plea agreement by representing that the higher base offense level was correct and recommending that the court vary downward from it, the breach did not affect Franklin’s substantial rights. Franklin himself argued for a base offense level of 26 at the sentencing hearing, and that level actually lowered his sentencing range. The Ninth Circuit held that the Government did not, therefore, affect his sentence in a detrimental way. Because Franklin could not show that the Government’s breach affected his substantial rights, he was bound by his appeal waiver and his appeal is dismissed.