In United States v. Plancarte, --- F.4th ---, No. 24-327 (9th Cir. 2025), the Court affirmed the district court's finding that the government did not breach the plea agreement, enforced the appellate waiver, and dismissed Erika Marie Plancarte’s appeal in a case in which she pleaded guilty to conspiracy to transport an alien into the United States.
Erika Marie Plancarte pleaded guilty to one count of conspiracy to transport an alien into the United States. The plea agreement bound the government to recommend a sentence of 90 days of imprisonment. We hold that the government did not implicitly breach the plea agreement by referencing Plancarte’s criminal history, expressing concern about Plancarte’s conduct and recidivism, clarifying an ambiguity in the presentence report, and declining to present mitigating evidence.Criminal plea agreements “are essentially contracts between the government and a defendant.” Id. at 28. As such, either party can breach the agreement by violating its terms. United States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (per curiam). For example, the government cannot agree “to recommend a sentence at the low end of the applicable guideline range,” but make “no recommendation” at all. Id. at 412, 413. Doing so violates “the terms of the plea agreement” and requires reversal and remand for resentencing. Id. at 413. In addition to complying with the literal terms of the contract, Farias-Contreras, 104 F.4th at 28, the parties must also comply with the “spirit of the plea agreement,” id. at 31. That means the parties’ arguments “must be made in good faith and advance the objectives of the plea agreement.” Id. We have compared this to contract law, which “implies a covenant of good faith and fair dealing in every contract.” Id. (citing Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003)). “This is a fact-specific inquiry based on contract principles.” Id. In conducting this inquiry, courts must consider the “totality of circumstances.” Id.The government may implicitly breach a plea agreement by making arguments to the district court that undermine the parties’ agreement. But our court, sitting en banc, expressly disclaimed finding a “per se” implicit breach of a plea agreement when the government “present[s] any information already known and contained in the” PSR. Id. The government is “entitled” to do so when “respond[ing] to arguments” raised by the defense. Id.The government may undermine the plea agreement if it introduces “information that serves no purpose but to influence the court to give a higher sentence,” id. at 28 (quoting United States v. Whitney, 673 F.3d 965, 971 (9th Cir. 2012) (cleaned up)), or if it “purports to make the promised recommendation while ‘winking’ at the district court to impliedly request a different outcome,” id. (quoting United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014)). One such example of bad faith behavior includes making inflammatory or pejorative comments about a defendant’s past offenses, such as analogizing drug dealers to vampires. See id. at 28–29. Or, the government may act in bad faith by inviting “the district court’s skepticism as to its recommendation” by noting a difference of opinion in the prosecutor’s office as to the correct sentence. Id. at 29. A court may consider such conduct to weigh in favor of finding that the government implicitly breached the plea agreement.On the other hand, so long as the government’s arguments are not precluded by the literal text of the plea agreement, id. at 30–31, the government may make arguments in support of its sentencing recommendation, including by highlighting aspects of the defendant’s offense or criminal history, see id. at 29; cf. United States v. Minasyan, 4 F.4th 770, 780–81 (9th Cir. 2021) (holding that the government did not implicitly breach the plea agreement by reiterating facts from the PSR that were relevant to the defendant’s sentencing). And when the defendant argues for a below-Guidelines sentence, the government may oppose the defendant’s argument and supplement the facts with relevant information, including by repeating facts in the PSR. Farias-Contreras, 104 F.4th at 30. However, the “government does not have carte blanche to use inflammatory rhetoric,” id. at 29, and the “government’s response [to a defendant’s request for a sentence lower than what the government recommends] must be tethered to its obligations under the plea agreement,” id. at 31.The government did not implicitly breach its plea agreement with Plancarte. Instead, the government stuck to the letter of the agreement, and it did not make statements in bad faith to undermine the parties’ bargain. The district court properly reached its own conclusion as to Plancarte’s sentence, as anticipated by the plea agreement. Therefore, we enforce the appellate waiver in the plea agreement, and we dismiss the appeal.
