by David M. Reutter

The U.S. Court of Appeals for the Sixth Circuit held the Government violated a plea agreement by arguing for a sentence that exceed the Guidelines. It remanded for resentencing before a different district court judge.

The Court’s opinion was the second time the issue was before it. Davian Warren pleaded guilty to being a felon in possession of a firearm. The U.S. District Court for the Northern District of Ohio sentenced him to the statutory maximum of 10 years in prison. Upon appeal, the Sixth Circuit held that that sentence was “substantively unreasonable,” and sent the case back the district court for resentencing. On remand, the district court imposed a 96-month sentence.

Warren appealed once again, arguing that the sentence was still substantively unreasonable. He also argued the Government violated his plea agreement at resentencing. Finding that argument valid and dispositive, the Sixth Circuit did not reach the substantively unreasonable issue.

After Warren was indicted by a grand jury, he pleaded guilty with the benefit of a written plea agreement. The agreement bound the parties to “recommend that the Court impose a sentence within” Warren’s Guidelines range, which turned out to be 51 to 63 months. Critically, the agreement also prohibited either party from “suggest[ing] in any way that a departure or variance” from the Guidelines range “is appropriate.” (emphasis added by the Court)

The district court informed the parties that it was considering an upward variance, which it imposed with the 120-month sentence.

On remand after the Sixth Circuit found that to be an “extreme variance,” the district court again informed the parties of a possible variance. Warren’s attorney urged a Guideline range sentence because “all agreed that the Guideline range was the appropriate sentence here.”

The prosecutor took exception to that comment and directly responded to it. Although she gave lip service to having “no intention of violating” the plea agreement, she then proceeded to essentially argue why an upward variance is appropriate.

She cited Warren’s prior record, which included felonious assault charges that arose out of actual shootings, an assault by firing upon a car with his family members in it, and an assault that resulted in paralysis to his brother. She indicated that the Government was not aware of this information when it entered into the plea agreement and “quite probably would have made different recommendations had it known that information.”

Warren’s attorney objected, claiming that the Government essentially argued, in violation of the plea agreement, to the district court that it “should not follow the plea agreement but should instead give Mr. Warren more time.” The district court disagreed with that characterization, and the prosecutor responded by stating she was not arguing a sentence higher than 63 months because she was bound by the plea agreement. Nevertheless, she concluded her comments by repeating her sentiment that “had the government had different information, perhaps it might have done something differently.”

The district court then sentenced Warren to 96 months in prison. It cited the facts surrounding his criminal history to support its variance form the Guidelines range. It said the variance was necessary to “protect the public, reflect the seriousness of the offense, [or] improve the offender’s conduct and condition.” Warren appealed.

The Court began its discussion by setting forth the legal principles governing plea agreements. It explained that plea agreements are treated like contracts. United States v. Ligon, 937 F.3d 714 (6th Cir. 2019). As such, courts use “traditional principles of contract law” in interpreting them, and importantly, courts enforce them in accordance with their literal terms. United States v. Lukse, 286 F.3d 906 (6th Cir. 2002). Because defendants waive specific fundamental rights when entering into a plea agreement, courts construe any ambiguities against the Government. United States v. Fitch, 282 F.3d 364 (6th Cir. 2002).

When entering into a plea agreement is induced by the promise or agreement of the prosecutor, “such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257 (1971). Prosecutors are held to “meticulous standards of performance.” United States v. Moncivais, 492 F.3d 652 (6th Cir. 2007). To meet these high standards, prosecutors are required to provide more than mere lip service to their obligations under plea agreements, the Court stated. It declared that we forbid “not only explicit repudiation of the government’s assurances” but also “end-runs around them.” Id.

Turning to the present case, the Court stated that the Government made a sweeping promise to not “suggest in any way” to the district court that a variance from Warren’s Guidelines range was inappropriate. And the Government breached that promise when it told the district court it “quite probably would have made different recommendations had it known” the specifics of Warren’s felonious assault convictions at the time it entered into the plea agreement, the Court ruled.

The Court stated that the plain language of the plea agreement clearly barred the Government from making the comments to the district court at issue. The plain meaning of the words used, as determined by reference to various dictionaries, undoubtedly bar the Government from doing what it did at Warren’s resentencing, according to the Court.

The Court explained that, at the very least, the Government “brought a variance forward by implication” by relaying to the district court that the Government “agreed to the plea with incomplete information and no longer felt a Guidelines sentence was appropriate.” But by casting doubt on the appropriateness of the Guidelines range, the Court concluded the Government “suggested” in some way that the district court should impose an upward variance in clear violation of the plea agreement. Furthermore, by also relating to the district court why it would not have agreed to the plea agreement now (i.e., details of felonious assault convictions), the Government “undoubtedly constituted advocacy, because the government was not providing any new factual information to the district court,” according to the Court. Quoting United States v. Mason, 410 F. App’x 881 (6th Cir. 2010).

Finally, the Court noted that the Government made its remarks in question in response to the defense’s comment that the Government believes the Guidelines range is appropriate. The Court observed that the Government specifically identified that the defense’s advocacy for a Guidelines range sentence was the basis for its comments to the district court. Consequently, the Court determined that there’s “little doubt as to the intent of the government’s comments at sentencing.”

The Court chided that the Government “cannot escape its duties under a plea agreement with a wink and a nod.” It had an obligation under the plea agreement to avoid suggesting “in any way” that a variance was appropriate, yet it choose to do so. Thus, the Court held that the Government violated the plea agreement.

Accordingly, the Court vacated the sentence and remanded for resentencing before a different district court judge. See: United States v. Warren, 8 F.4th 444 (6th Cir. 2021). 

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