Criminal Procedure — breach of plea agreement

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U.S. Court of Appeals for the 7th Circuit

Criminal

Criminal Procedure — breach of plea agreement

Where the government honored its plea agreement, despite acknowledging that the actual relevant conduct was greater than agreed, the government did not breach the agreement.

“But the government, throughout the hearing, honored its commitment to recommend a quantity lower than 280 grams. Cf. Diaz-Jimenez, 622 F.3d at 696 (prosecutor’s statement that the least amount is that which was bargained for in the plea agreement but that ‘a larger sentence could be appropriate’ is ‘a serious breach’). And Davis received the full benefit of the plea agreement, despite the government’s initial under-calculation of the drug quantity. See United States v. Feichtinger, 105 F.3d 1188, 1191 (7th Cir. 1997) (‘If the government, in effect, does a little less than it promised, but actually does something which may be more likely to yield good results for a defendant, then it has not breached its end of a plea agreement.’). The government, while acknowledging that it had under-calculated the quantity of drugs attributable to Davis, nonetheless repeatedly stood by its position that he be sentenced in accordance with the plea agreement. See United States v. Salazar, 453 F.3d 911, 914–15 (7th Cir. 2006) (no substantial breach when the government recommended the amount in the plea agreement despite referring to the defendant as a ‘cold-blooded killer’ at sentencing); United States v. Rachuy, 743 F.3d 205, 209 (7th Cir. 2014) (‘The government honored its obligation in that it never advocated for a higher sentence’ and ‘on numerous occasions, recommended that Rachuy receive the agreed-upon … sentence.’). Moreover, Davis’s proposed remedy, that the plea agreement be rescinded, would possibly subject him to a greater sentence. The fact remains that, despite all of the confusion regarding the drug quantity following Davis’s objections, the government recommended and Davis received exactly what was written in the plea agreement. Accordingly, we do not find a breach warranting rescission of the agreement.”

Affirmed.

13-1978 U.S. v. Davis

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