In United States v. Farias-Contreras, --- F.4th ---, No. 21-30055 (9th Cir. 2024) (en banc), the Court affirmed a sentence in a case in which the defendant argued that the government breached its promise under the plea agreement not to recommend a sentence in excess of the low-end of the sentencing guidelines range when the government implicitly urged the district court to impose a harsher sentence.
Although the en banc majority found that the government implicitly breached the plea agreement, it affirmed because plain-error review applied. So, this is a good reminder about the importance of objecting:
Under our rules, as clarified here, the government’s conduct in this case constitutes an implied breach of the agreement. But because the law was not clear at the time of sentencing, we do not find plain error. Accordingly, we affirm Farias-Contreras’s sentence.
The Court also clarified the law on implicit breaches:
In cases involving an implicit breach claim such as this, courts must look first to the plain language of the plea agreement. As long as the agreement does not expressly prohibit the government from responding to a defendant’s request for a sentence lower than what is recommended by the government, the government has the latitude to respond. In other words, as a default rule, the government can respond even if the plea agreement is silent on the issue.But the government’s response must be tethered to its obligations under the plea agreement, even when responding to the defendant’s specific request for a downward departure or to the court’s questions. While a prosecutor need not invoke magic words—such as reiterating the government’s recommendation for a low-end sentence—each time he or she argues against mitigation or answers the court’s questions, the government must comply with the letter and spirit of the plea agreement. That is, the government’s arguments must be made in good faith and advance the objectives of the plea agreement. Cf. Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003) (noting that state law implies a covenant of good faith and fair dealing in every contract). This is a fact-specific inquiry based on contract principles. Courts should look at the totality of circumstances and consider, inter alia, the sequencing, severity, and purpose of the statements.Finally, to the extent our precedent can be read to prohibit the government from presenting any information that is already known and contained in the presentence report, we reject such a categorical rule. In cases where the government is entitled to respond to arguments by the defense, repeating facts in the presentence report does not constitute a per se breach.
