Criminal Procedure — breach of plea agreement

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — breach of plea agreement

Where a change in the law rendered a plea agreement contrary to law, it was not plain error for the government to not recommend the sentence it agreed to.

“‘Although a judge is no longer required to give a guidelines sentence, he is required to make a correct determination of the guidelines sentencing range as the first step in deciding what sentence to impose.’ United States v. Vrdolyak, 593 F.3d 676, 678 (7th Cir. 2010). Thus, in determining Winters’s sentence, the district court was required to first properly ascertain his Guideline sentencing range. And a proper calculation of Winters’s Guideline range included the offense level of 37 based on his undisputed status as a career offender. Accordingly, even if the government had argued that Winters’s offense level should be 32, the district court is not bound by the plea agreement. United States v. Mankiewicz, 122 F.3d 399, 403 n.1 (7th Cir. 1997). It is also highly unlikely the judge would have ignored the law and accepted that argument. Rather, in light of the undisputed facts, the district court would have set Winters’s offense level at 37 based on his status as a career offender and sentenced him exactly as it did. Given the sentencing range of 262 to 327 months’ imprisonment and the government’s request of 170 months’ imprisonment, the imposed sentence of 165 months was certainly fair and appropriate, and to some extent favorable to Winters.”

Affirmed.

11-3527 U.S. v. Winters

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Manion, J.