10-2720 U.S. v. O’Doherty

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Criminal Procedure
Breach of plea agreement

Although the PSR reached a much higher loss figure than contemplated by the parties, the government did not breach the plea agreement by agreeing with the higher loss figure.

“Our principal difficulty with Mr. O’Doherty’s argument is that it misconstrues the language of the pertinent section of the agreement, and ‘a party’s rights under a plea agreement are limited by what the parties in fact agreed to,’ United States v. Schilling, 142 F.3d 388, 395 (7th Cir. 1998). As we already have noted, the section concerning relevant conduct provides that ‘[t]he defendant acknowledges that the government can prove’ that the tax loss from the charged period is $425,766. R.18 at 6. It says nothing about any promise by the Government to limit its relevant conduct recommendation to those amounts with respect to the charged years, nor does it say anything whatsoever about any obligations with respect to the uncharged years. Moreover, the subsequent language—that the calculations are non-binding predictions, not entitled to reliance by any party—further clarifies the parties’ understanding on this issue.”

Affirmed.

10-2720 U.S. v. O’Doherty

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Ripple, J.

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