by Sam Rutherford

The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, clarified when the Government breaches its promise in a plea agreement not to recommend a sentence in excess of the low-end of the Sentencing Guidelines range when responding to the defendant’s request for a downward variant sentence. Although the Court held that the Government implicitly breached the plea agreement in this case, the defendant’s sentence was nonetheless affirmed because the Government’s conduct did not constitute plain error under existing Ninth Circuit precedent.

Background

On October 28, 2020, Gerardo Farias-Contreras (“Contreras”) entered into a plea agreement with the Government in which he agreed to plead guilty to conspiring to distribute methamphetamine and heroin in exchange for the Government’s promise to drop two additional charges and “not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States.” The plea agreement permitted Contreras to argue for any legal sentence and permitted either party to present facts not stipulated to in the plea agreement if “relevant to the guideline computation or sentencing.” The U.S. District Court for the Eastern District of Washington accepted Contreras’s guilty plea and the plea agreement.

Contreras filed a memorandum in anticipation of his sentencing hearing, arguing for a six-level reduction in the base offense level resulting in a sentencing range of 108–135 months. He requested a low-end or below-range sentence based on his many physical disabilities. The Government responded with a memorandum of its own. After reducing the base offense level by three, it arrived at a sentencing range of 151–188 months. The Government recommended a low-end sentence of 151 months.

But the Government did not stop there. It stated that Contreras had been convicted of an “unquestionably serious offense,” that drug trafficking is “nothing less than pumping pure poison into our community,” cited to statistics of drug overdose deaths, quoted from a book about the families of living drug addicts, and included a quote from a decades old Fifth Circuit case describing drug dealing as a “grave offense” worse than murder. The memorandum concluded by emphasizing that Contreras was “at the top of criminal culpability in this case,” had been drug trafficking since 1990, that the ailments he now complained about had not seemed to interfere with his criminal conduct, and that a significant sentence was therefore warranted.

Contreras requested a sentence of 108 months at the sentencing hearing based principally on his physical condition—he had been shot multiple times, had a colostomy and urethra, “still had to use manual methods in order to relieve himself,” and cannot walk without leg braces. The Government stated that it was standing by its written recommendation but then volunteered that this recommendation “was something that was of much discussion.”

This statement of course prompted the District Court to ask for clarification. The Government responded, “In our office—of what do we do with this particular defendant? [Contreras] is at the top of the food chain in terms of criminal culpability, in terms of personally directing and organizing the distribution of a massive, massive amount of drugs.” The Government also stated that “everyone” in the U.S. Attorney’s Office was “sympathetic to [Contreras’s] physical condition and what that means for him, but we were unanimous in coming back to this physical condition has not deterred his conduct whatsoever.”

Again, referring to “everyone,” the Government stated that the “unanimous” recommendation was for a long sentence “to protect the public.” Although the Government ended its remarks by saying it was standing by the recommendation set forth in its memorandum, it did not specify a number of months on the record.

Relying on the facts and argument presented by the Government, the District Court adopted its Guidelines range and sentenced Contreras to 188 months in prison, the high-end of the sentencing range. Although acknowledging Contreras’ physical disabilities and that “incarceration is not going to be easy” for him, the court nonetheless felt that a long sentence was required to address Contreras’ long history of drug trafficking, the seriousness of the drug problem and its impact on “children,” and to protect the public. Unfortunately for Contreras, his attorney did not object to the Government’s presentation as a breach of its obligation to recommend no more than the low-end of the sentencing range.

Contreras argued on appeal that although the Government had technically recommended a sentence at the low-end of the Guidelines range, it nonetheless breached the plea agreement by offering statements in both its sentencing memorandum and at the sentencing hearing implicitly urging the District Court to impose a longer sentence. A divided three-judge panel of the Ninth Circuit agreed, vacated Contreras’ sentence, and remanded the case for resentencing before a different judge.

The Ninth Circuit granted the Government’s petition for rehearing en banc and vacated the panel opinion.

Analysis

The en banc Court addressed two issues: (1) whether the Government’s conduct implicitly breached its promise in the plea agreement to recommend no more than a sentence at the low-end of the Guidelines range, and if so, (2) whether the Government’s conduct amounted to plain error thereby entitling Contreras to relief on appeal. The Court answered the first question in the affirmative, and in doing so, it clarified what the Government may do when a defendant requests a downward variant sentence, but unfortunately for Contreras, the answer to the second question was no.

Implicit Breach

Determining whether the Government implicitly breached its agreement with Contreras turned on a proper understanding of plea agreements and the Government’s obligations thereunder, according to the Court. Plea agreements are essentially contracts between the Government and defendant. United States v. Myers, 32 F.3d 411 (9th Cir. 1994). Courts construe plea agreements to determine what the defendant reasonably understood its terms to mean, United States v. De la Fuente, 8 F.3d 1333 (9th Cir. 1993), and will resolve any ambiguities in the defendant’s favor, United States v. Heredia, 768 F.3d 1220 (9th Cir. 2014). The Government, however, is held to “the literal terms of the agreement.” Myers.

The Government breaches a plea agreement by “implicitly arguing for a sentence greater than the terms of the plea agreement specified that the prosecution would recommend.” United States v. Whitney, 673 F.3d 965 (9th Cir. 2012). The “government breaches its bargain with the defendant if it purports to make the promised recommendation while ‘winking’ at the district court to impliedly request a different outcome.” Heredia. “Although a sentencing recommendation need not be made enthusiastically, when the government obligates itself to make a recommendation at the low end of the guidelines range, it may not introduce information that serves no purpose but to influence the court to give a higher sentence.” Whitney. An implicit breach occurs when the Government “makes inflammatory comments about the defendant’s past offenses,” Heredia, indicates a preference for a “harsher sentence,” Whitney, or introduces evidence irrelevant to issues the Government is permitted to argue. Id.

The en banc Court agreed with Contreras that he had a “strong argument” under Whitney and Heredia that the Government’s conduct in his case amounted to an implicit breach of its promise to recommend no more than the low-end sentence. Although the Government technically made the promised recommendation, it went much further by including extraneous information in its sentencing memorandum about drug overdose deaths and the impact drug crimes have on families and the community, the Court noted.

The Government also seemed to invite the District Court’s “skepticism” about the sentencing recommendation by offering insights into the internal discussions of staff at the U.S. Attorney’s Office concerning Contreras, during which the Government claimed that “everyone” was “unanimous” that he deserved a long sentence in light of his extensive history and despite his physical disabilities.

But other Ninth Circuit decisions cut against finding an implicit breach, the Court stated. For example, in United States v. Maldonado, 215 F.3d 1046 (9th Cir. 2000), the court held that the “government has a duty to ensure that the court has complete and accurate information, enabling the court to impose an appropriate sentence.” And in United States v. Moschella, 727 F.3d 888 (9th Cir. 2013), the court found no implicit breach where the plea agreement obligated the Government to make a low-end recommendation but did not prohibit it from opposing the defendant’s request for a downward variance. After the defendant requested the variance, the prosecutor in Moschella properly argued that the defendant’s crime was serious, that it was motivated by greed, and that he was a danger to society.

The Court stated that the prosecutor in this case could have easily looked at both Maldonado and Moschella and concluded that the arguments offered in response to Contreras’ request for a downward variance were permissible, particularly since the plea agreement allowed either party to present and argue “additional facts which are relevant to the guideline computation or sentencing, unless otherwise prohibited in this Plea Agreement.” Moreover, the prosecutor did acknowledge that Contreras’ physical disabilities would make prison difficult for him.

Nevertheless, the Court determined that the prosecutor’s conduct did implicitly breach the plea agreement under both Whitney and Heredia. Although it was a “close question,” the Court held that after considering the entirety of the record, “the government’s conduct crossed the line from permissible advocacy to an improper end-run of the plea agreement. The prosecutor simply went too far.” Adhering to the principles announced in Whitney, the Court reasoned that prosecutors do not have “carte blanche to use inflammatory rhetoric” and argue for long prison sentences just because the defendant requests a downward variant sentence.

Plain Error

Although the Court determined that there was error in this case, Contreras was entitled to relief only if that error was “plain” because he failed to object to the Government’s conduct at sentencing. See Whitney. An error is plain when it is “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129 (2009). Plain error review “will often have some ‘bite’ in plea-agreement cases” because not “all breaches will be clear or obvious.” Puckett. It certainly had “bite” in this case.

The Court determined that the Government’s conduct in this case did not clearly and obviously run afoul of preexisting implicit breach case law, viz., the decisions in Heredia, Whitney, Maldonado, and Moschella. Because none of these decisions were “sufficiently instructive” to put the Government on notice that its conduct in Contreras’ case was prohibited, and in fact some of them may have created at least a “reasonable dispute” as to the legality of the Government’s conduct, the Court held that the error was not plain, and Contreras was not entitled to relief.

Clarification of the Governing Case Law for Implicit Breach Claims

The Court explicitly announced that it’s clarifying the law on this topic by providing guidance for courts to follow going forward. In cases involving implicit breach claims, the Court instructed that “courts must look first to the plain language of the plea agreement.” If the agreement doesn’t explicitly bar the Government from responding to the defendant’s request for a sentence that’s below what the Government recommends, it may respond. That is, the “default rule” is that the Government may “respond even if the plea agreement is silent of the issue,” the Court explained.

But the Court cautioned that the Government’s “response must be tethered to its obligations under the plea agreement” and that the Government “must comply with the letter and spirit of the plea agreement.” The Court instructed that this is a “fact-specific inquiry based on contract principles” and that courts “should look at the totality of circumstances.”

Finally, the Court clarified: “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.”

Conclusion

Accordingly, the Court affirmed Contreras’ sentence of 188 months in prison, despite holding that the Government had in fact implicitly breached its plea agreement with him. See: United States v. Farias-Contreras, 104 F.4th 22 (9th Cir. 2024) (en banc).

Writer’s note: Although the majority in this en banc decision clearly expressed a preference for the principles and holdings in Heredia and Whitney, it is important to note that it did not overrule either Maldonado or Moschella, so all the foregoing cases remain good law to the extent they don’t conflict with the guidance announced by the Court in its opinion.

Defendants raising implicit breach claims in the Ninth Circuit should be aware of latter two cases and be prepared to distinguish them while simultaneously drawing analogies to the decisions in Farias-Contreras, Heredia, and Whitney. Defendants litigating implicit breach claims will also find helpful case law and analysis in Judge Gould’s concurring opinion in Farias-Contreras.   

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