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Government Breached Plea Agreement by Advocating for Enhancement at Sentencing

Published By Stephen Preziosi

US v. Fowler

445 F. 3d 1035

Eighth Circuit Court of Appeals 

Decided on April 17, 2006

Issue:

Government Advocates for Enhancement Despite Plea Agreement Stipulations

Whether the Government breached the plea agreement with defendant Fowler when it advocated for the career-offender enhancement at sentencing despite stipulating in the agreement to recommend defendant’s offense level to be 25. 

Holding:

Government Breached Agreement

The Eighth Circuit held that the Government breached the plea agreement when it advocated for the imposition of the career-offender enhancement despite its recommendation that the offense level be 25. 

Facts:

Dwight Fowler pled guilty to five counts of bank robbery in violation of 18 U.S.C. § 2113(a). The plea agreement specifically addressed a number of sentencing issues, including Fowler’s estimated offense level of 25. The “GUIDELINES RECOMMENDATIONS” section of the agreement detailed the version of the Guidelines manual the parties recommend, the applicable base offense level for the conduct, and what enhancements applied. The section concluded, “based on these recommendations, the parties estimate that the Total Offense Level is 25.” 

The pre-sentence report (PSR), however, recommended the imposition of the career-offender enhancement based on defendant’s past conviction stemming from a series of armed robberies, raising his offense level to 29. Fowler objected to the enhancement, arguing that it would be a breach of the plea agreement. In response, the Government filed a memorandum in support of the PSR enhancement, disputing that it had agreed the career-offender enhancement was inapplicable. The district court accepted the Government’s argument and sentenced defendant to 151 months of imprisonment followed by three years of supervised release. 

Analysis:

Government Advocated for a Different Outcome from the One Promised 

The plea agreement in this case clearly bound both the Government and Fowler to recommend an adjusted offense level of 25 for his conduct. But in its written and oral presentation to the court, the Government actively advocated for an outcome different from the one it promised Fowler. At oral argument, the Government suggested it felt compelled to state its view because the district court asked for it at sentencing. This assertion fails to explain the Government’s written response to Fowler’s objections to the PSR, and the district court’s asking for the Government’s position does not excuse it for failing to abide by the plea agreement. The Eighth Circuit remanded the case for the district court to determine the appropriate remedy. 

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Sentence Reduction and the Compassionate Release Statute

Published By Stephen Preziosi

US v Andrews

No. 20-2768

Third Circuit Court of Appeals

Decided on August 30, 2021

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Issue:

Entitlement to Compassionate Release

Whether the District Court erred in denying defendant Andrews’ motion for compassionate release based on “extraordinary and compelling reasons” warranting a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i), where Andrews is serving a 312-year sentence for thirteen armed robberies committed when he was nineteen.

Holding:

Compassionate Release requires “Extraordinary and Compelling” Reasons

The Third Circuit held that 1) the District Court did not err in denying Andrews’ motion for compassionate release because his reasons fell short of the “extraordinary and compelling” reasons requirement, and 2) courts wield considerable discretion in granting such motions.

Facts:

In 2005 defendant Eric Andrews robbed thirteen North Philadelphia businesses at gunpoint. Andrews was charged with the robberies, conspiring to commit the robberies, and brandishing a firearm during the completed crimes. A jury found Andrews guilty on all counts and he was sentenced to 312 years’ imprisonment: 57 months for the robberies and conspiracy under 18 U.S.C. § 1951, and 3,684 months for brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c). Andrews received such a sentence because, at the time, each additional § 924(c) count carried a 25-year mandatory minimum.

With the First Step Act of 2008, Congress revised § 924(c) so that the 25-year mandatory minimum for subsequent offenses would not apply unless the defendant already had a final conviction for a § 924(c) charge at the time of the offense. Had Andrews been sentenced after 2008, his consecutive convictions for brandishing a firearm would generate a statutory minimum of 7 years each, resulting in a 91-year sentence. But Congress did not make the statutory change retroactive, so Andrews was not entitled to a reduced sentence. He was, however, entitled to move for a modified sentence via compassionate release. In his support of his motion, Andrews pointed to the recent changes to the § 924(c) mandatory minimums as well his rehabilitation in prison, his young age at the time of his offense, the government’s decision to charge him with thirteen § 924(c) counts, and his alleged susceptibility to COVID-19. Defendant claimed that these reasons were “extraordinary and compelling” reasons under the compassionate release statute. The District Court disagreed, denying Andrews’ motion.

Analysis:

Compassionate Release is a “Purely Discretionary Decision”

The Third Circuit reiterated that courts wield considerable discretion in compassionate release cases, and it will not disturb a court’s determination unless left with a “definite and firm conviction that it committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” (US v. Pawlowski, 967 F.3d 327, 440 [2020]). The Court explained that a grant of compassionate release is “a purely discretionary decision.” Therefore, in determining whether the District Court abused its discretion, the Third Circuit reviewed the court’s decision under the abuse-of-discretion standard.

Definition of “Extraordinary and Compelling”

A prisoner’s motion for compassionate release may be granted if the court finds that the sentence reduction is 1) warranted by “extraordinary and compelling reasons”; 2) “consistent with applicable policy statements issued by the Sentencing Commission”; and 3) supported by the traditional sentencing factors under 18 U.S.C. § 3553(a), to the extent they are applicable.

Before the District Court could consider whether defendant’s proposed reasons collectively satisfied the “extraordinary and compelling” requirement, it first had to determine the meaning of the phrase under the statute. Commission policy describes “extraordinary and compelling reasons” as: 1) medical conditions, 2) complications in old age, 3) family circumstances, and 4) “other reasons” as determined by the Directer of the Bureau of Prisons. But the court concluded that this policy statement applies only to Bureau-initiated motions and is inapplicable to prisoner-initiated motions. Furthermore, the court held that is was free to interpret the phrase for itself and consider reasons beyond the four categories listed in the policy statement.

Defendant’s Reasons for Compassionate Release Fall Short of Requirement

The District Court concluded, then, that two of the proposed reasons—the duration of defendant’s sentence and the non-retroactive changes to mandatory minimums—could not be extraordinary and compelling as a matter of law. The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance, and the First Step Act’s changes to the § 924(c) statute did not apply to people who had already been sentenced. “There is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” (United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021)). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” (United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021)).

Regarding the other reasons included in defendant’s motion, the District Court held that they, too, fell short of the extraordinary and compelling requirement. The court recognized that Andrews was arrested at nineteen and has made great strides in his rehabilitation in prison, but that his other reasons—susceptibility to COVID-19 and the Government’s decision to charge him with thirteen firearm counts—weighed against him because he presented no facts showing that prosecutors abused their discretion and he provided insufficient details about his susceptibility to COVID-19.

The Third Circuit therefore found no clear errors of judgment, and it affirmed the District Court’s order denying defendant’s motion for compassionate release.

Plea Agreements and Government Responsibility

Published By Stephen Preziosi

US v. Lawlor

168 F.3d 633

Second Circuit Court of Appeals

Decided on Feb. 23, 1999

Issue:

Government Agrees with Enhancement at Sentencing, Despite Plea Agreement

Whether the Government violated the plea agreement with defendant Lawlor when, at sentencing, it agreed with the pre-sentence reports’ (PSR) application of a higher offense level than was stipulated in the agreement. 

Holding:

Government Violates Plea Agreement by Supporting Enhancement not Stipulated in Plea Agreement

The Government breached the plea agreement when it agreed with the PSR’s application of Sentencing Guidelines despite the plea agreement’s contradictory promise. 

Facts:

Defendant Richard Lawlor fought with his cell mate while incarcerated and, during the melee, may have struck a corrections officer in the face. He pled guilty to assaulting a federal corrections officer and was sentenced to the statutory maximum of twelve months’ imprisonment. The plea agreement stipulated that the Government “agree[d] that § 2A2.3 of the Guidelines, Minor Assault, is applicable to Count One” to determine Lawlor’s base offense level. The PSR, however, recommended that the court apply Sentencing Guideline § 2A2.4 (“Obstructing or Impeding Officers”), instead of the section that was listed in the agreement. The PSR also recommended a three-level enhancement pursuant to § 2A2.4(b)(1) of the Guidelines for conduct that “involved physical contact.”

Defendant objected to the PSR, arguing that the enhancement contradicted the terms of the plea agreement. At sentencing, the district court noted defendant’s objections to the PSR and asked counsel if she wanted to add anything to the arguments she had previously made; she declined. The district court then asked the Government if it wished to respond to defendant’s arguments, and it stated that, “the Government feels that the Pre-sentence Report was appropriately scored in the first instance.” The district court accepted the Government’s argument and, finding the recommended enhancement was appropriate, sentenced defendant to 12 months’ incarceration to run consecutively with his term of imprisonment. 

Analysis:

Defendant Not Required to Object to Violation of Plea Agreement at the Time of Sentencing

The Government argued that because the defendant’s counsel did not object to the application of the sentence enhancement at the sentencing hearing that the Second Circuit was bound to apply a plain error standard of review. The Second Circuit disagreed, explaining that a defendant is not required to object to the violation of a plea agreement at the sentencing hearing. (See United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir. 1993) 

What Both Parties ‘Reasonably Understand’ to be the Terms of Agreement

To determine whether there was a breach of plea agreement, “a court must look to what the parties reasonably understood to be the terms of the agreement” and “any ambiguity should be resolved against the government.” (United States v. Miller, 993 F.2d 16, 20 (2d Cir. 1993)). The Government was bound by its stipulation in the plea agreement that § 2A2.3 was “applicable to Count One.” Yet, at the sentencing hearing, when the Government was asked for its position with respect to the defendant’s objection to the PSR recommendation that a three-level enhancement for physical contact pursuant to § 2A2.4(b)(1) be applied, the Government agreed with the PSR. By concurring with the PSR’s enhancement, the Government breached the plea agreement.  

Government Should Take Greater Care with Respect to Plea Agreements

The Second Circuit reiterated the admonition that it has expressed to the Government on other occasions, that it “take much greater care in fulfilling its responsibilities where plea agreements are involved.” (United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)). Given the Government’s often decisive role in the sentencing context, the Court will not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standard of fairness. The Second Circuit vacated Lawlor’s sentence and ordered that he be re-sentenced before a different district judge. 

Suffering consequences as a result of the Government’s breach of your plea agreement? Contact an appeals attorney today.

Compassionate Release And Exhaustion Of Administrative Remedies: Exhaustion Rule Is Not A Jurisdictional Requirement

Published By Stephen Preziosi

Compassionate Release Motions and the Administrative Exhaustion Requirement

United States v. Saladino

No. 20-1563

Second Circuit Court of Appeals

Decided on August 4, 2021

Issue:

 Whether the district court erred in denying defendant Anthony Saladino’s motion for compassionate release due to the threat of COVID-19 where he did not first satisfy the administrative exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A), and whether administrative exhaustion is a jurisdictional requirement that must be satisfied before a district court can entertain a motion for compassionate release.

Holding:

Administrative Exhaustion Requirement is Not Jurisdictional, can be Waived or Forfeited by Government

The Second Circuit remanded the case to the district court to be heard on the merits and held that the administrative exhaustion requirement in 18 U.S.C. § 3582(c)(1)(A) is a claim-processing rule that may be waived or forfeited, and not a jurisdictional requirement on a court’s authority to consider a motion for compassionate release.

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Facts:

In April 2020, Saladino filed a motion for compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A), arguing that given his medical condition, the threat of COVID-19 justified his early release from prison. At the hearing on the motion before the district court, Saladino admitted that he failed to exhaust his administrative remedies by statute. Instead, he asked the district court to excuse his failure to exhaust. The district court denied Saladino’s motion because he “failed to exhaust his administrative remedies, which are non-waivable.”

Analysis:

The Court found that the district court erred where it intended to hold that it lacked jurisdiction to consider Saladino’s motion due to his failure to exhaust all administrative remedies. A rule is jurisdictional “if the Legislature clearly states that a prescription counts as jurisdictional.” (Fort Bend Cnty v. Davis, 139 S. Ct. 1843, 1850 (2019)). But when Congress does not rank a prescription as jurisdictional, courts should treat the restriction as non-jurisdictional in character.

Compassionate Release Statute

The statute governing an inmate’s motion for compassionate release reads:  “ A court may not modify a term of imprisonment once it as been imposed except that – A) the court, upon motion of the Director of the Bureau of Prisons (BOP), or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the BOP to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment [subject to certain conditions].” (18 U.S.C. § 3582(c)(1)(A)). Since the language does not provide a clear statement setting forth a jurisdictional prescription, the Second Circuit concluded that that the exhaustion requirement is a “claim-processing rule” and, accordingly, “may be waived or forfeited” by the government. (Hamer v Neighborhood Hous. Servs., 138 S. Ct. 12, 17, (2017)).

The Court explained that district courts in the circuit have split on how to interpret the statute’s provision permitting an inmate to move for a sentence reduction “after…the lapse of 30 days from the receipt” by the warden of an inmate’s request for the BOP to move on his behalf. Some courts have held that the provision authorizes an inmate to file a motion only after he has “waited 30 days from the Warden’s receipt of his request for compassionate release without receiving a response. (United States v Samuels, No. 08-CR-789-6, 2020 WL 7696004, at *3(S.D.N.Y Dec. 28, 2020)). But if the BOP timely responds to the inmate’s request for compassionate release, the inmate must “‘satisfy the same exhaustion procedure’ that applies to ‘routine administrative grievances,’” which would “include appeals to both the appropriate Regional Director and the BOP General Counsel. (Id.)

Other district courts, however, have held that the statute’s 30-day waiting period authorizes the inmate’s filing a motion regardless of whether the warden responds to the inmate’s request for compassionate release. Under this view, an inmate must “either…exhaust administrative remedies or simply…wait 30 days after serving his petition on the warden of his facility before filing a motion in court.” (United States v. Haney, 454 F. Supp. 3d 316, 321 (S.D.N.Y. 2020).

While the Second Circuit did not directly address the question of interpretation, it reiterated that the exhaustion requirement is a claim-processing rule and may be waived or forfeited. It vacated the district court’s decision and remanded with instructions to consider Saladinos’s motion on its merits.

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