by Sam Rutherford

The U.S. Court of Appeals for the First Circuit held that the Government violated the terms of its plea agreement with a defendant where it failed to explain at sentencing why it agreed to recommend a downward variant sentence of probation and instead passively stated it was standing by its sentencing recommendation after acknowledging that a presentence report’s much higher base offense level was correct.

Background

In July 2020, Alejandro Cortés-López and his co-defendant, Gary Steven Wykle, were indicted by a federal grand jury in Puerto Rico for conspiracy to commit mail and wire fraud, securities fraud, and multiple substantive counts of wire fraud. The two men ran a Ponzi scheme by duping local residents into investing in short-term, high-interest loans in the Dominican Republic through The Republic Group, Inc., a Florida corporation. The loans were non-existent. The fraudsters used funds collected from investors to pay themselves and also distributed some of the money to earlier investors to lull them into believing their investments were performing as promised. The two men received approximately $12,000,000 from over 100 individuals between 2010 and 2017.

Both men agreed to plead guilty to one count each of mail and wire fraud. In Cortés-López’s plea agreement, the Government stipulated that the crimes resulted in $749,200 in total losses, resulting in a total offense level of 18 with a Guidelines sentencing range of 27-33 months’ incarceration. The parties, however, agreed to jointly recommend a variant sentence of just 24 months’ probation regardless of the final offense level and sentencing range calculated by the U.S. District Court for the District of Puerto Rico. The District Court accepted the plea agreement and Cortés-López’s guilty plea in April 2022, and it scheduled a sentencing hearing for the following November.

Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report. Based on information provided by the Assistant U.S. Attorney (“AUSA”), the report concluded that Cortés-López’s fraud resulted in losses of approximately $5.4 million to more than 25 victims. These facts warranted an 18-level addition to the base offense level for crimes involving loses greater than $3.5 million and a 6-level enhancement for financial hardship to 25 or more victims. Cortés-López filed an objection to the presentence report as being inconsistent with the figures the parties had stipulated to in the plea agreement.

At the sentencing hearing, Cortés-López’s attorney argued that 24 months’ probation was a just sentence because this was his first offense, he had taken responsibility, and had been working to repay the money he stole even before he was indicted in this case. The AUSA responded by noting that “the United States believes the United States Probation Office is correct in their assessment of [the sentencing] enhancements. Nonetheless, the United States and the defendant entered into a plea agreement wherein the United States and the defendant took into consideration a specific amount of loss.” The AUSA then stated that she was “standing by” her promise to recommend a sentence of 24 months’ probation.

The District Court overruled Cortés-López’s objections to the presentence report, concluding that the probation department is not bound by factual stipulations in a plea agreement. The court then adopted the sentence enhancements outlined in the report, arriving at a total offense level of 28 with a Guidelines sentencing range of 78 to 97 months. The court imposed a sentence of 24 months in prison followed by three years of supervised release, concluding that the recommended sentence of probation was not consistent with the seriousness of the offense, did not promote respect for the law, was insufficient punishment and deterrence, and did not adequately protect the public.

Cortés-López timely appealed the sentence, contending that the Government breached its plea agreement by supporting the sentencing enhancements set forth in the presentence report and by failing to meaningfully advocate for the agreed upon sentence of probation.

Analysis

The Court began its analysis by determining the correct standard of review. Typically, appellate courts review claims that the Government breached a plea agreement de novo but not when a defendant fails to raise the issue in the District Court. Instead, the First Circuit reviews the alleged breach for plain error. See United States v. Sierra-Jiménez, 93 F.4th 565 (1st Cir. 2024). Cortés-López admitted he did not raise the plea breach issue below but attempted to avoid plain error review by arguing that the District Court judge who sentenced him, the Hon. Francisco A. Besosa, requires only that the Government “mouths” the agreed upon sentence and nothing more, essentially contending that any objection would have been futile.

Although recognizing that plain error review will not apply when a defendant attempts to lodge an objection but the District Court cuts off defense counsel’s argument midstream, United States v. Fernandez-Garay, 788 F.3d 1 (1st Cir. 2015) (citing Fed. R. Crim. P. 51(b)), nothing in the record showed that Cortés-López’s attorney attempted but was prevented from raising the plea breach issue. In fact, the record showed that defense counsel made several objections at sentencing, which the District Court considered and rejected. Defense counsel’s failure to raise the breach issue below limited the appellate court’s review of that claim to plain error, meaning that it would “consider whether: (1) there was error, (2) it was plain, (3) the error affected the defendant’s substantial rights, and (4) the error adversely impacted the fairness, integrity, or public reputation of judicial proceedings.” Quoting Sierra-Jiménez.

Turning to the merits, the Court noted that plea bargaining is an “essential” and “highly desirable” part of the criminal justice system because it avoids the risks of trial for both the Government and defendant and promotes the prompt and mostly final resolution of cases. See United States v. Frazier, 340 F.3d 5 (1st Cir. 2003). Courts rely on traditional contract law principles to interpret a plea agreement and analyze each party’s performance of its obligations under it accordingly. United States v. Brown, 31 F.4th 39 (1st Cir. 2022).

The Government is held to “the most meticulous standards of both promise and performance” because “a defendant who enters a plea agreement waives fundamental constitutional rights.” Brown (quoting United States v. Marín-Echeverri, 846 F.3d 473 (1st Cir. 2017)). The Government must give more than just “lip service to, or technical compliance with, the terms of a plea agreement,” because the defendant is entitled to both the “benefit of the bargain struck in the plea deal and to the good faith of the prosecutor.” United States v. Lessard, 35 F.4th 37 (1st Cir. 2022).

While there is no “magic formula” for determining whether a prosecutor has satisfied his or her duty of recommending a particular sentence under the terms of a plea agreement, the First Circuit’s case law requires it to evaluate whether under the totality of the circumstances, the prosecutor’s “overall conduct” is consistent with making the promised recommendation. Lessard (quoting United States v. Canada, 960 F.2d 263 (1st Cir. 1992)). While the Government need not make the agreed upon recommendation with enthusiasm, it must not express reservations about the agreement either. Canada. Thus, First Circuit case law prohibits not only “explicit repudiation” of promised recommendations but also “end runs” around them as well. Frazier (quoting United States v. Saxena, 229 F.3d 1 (1st Cir. 2000)).

While prosecutors are obligated to carry out both the letter and spirit of sentencing recommendations, they also have an obligation of providing accurate sentencing information to the courts, including information about both the offense and the defendant. United States v. Almonte-Nuñez, 771 F.3d 84 (1st Cir. 2014). These concurrent obligations create tension between the general principle that the prosecutor must provide reliable sentencing information and the promise to omit certain facts as an implicit part of the plea bargain with the defendant. United States v. Davis, 923 F.3d 228 (1st Cir. 2019). To bring these obligations into line with one another, the First Circuit has recognized that there is a “material difference” between a prosecutor answering questions asked by the sentencing court or bringing facts to the court’s attention and engaging in conduct that violates the explicit terms of a plea agreement by, for example, supporting a sentencing enhancement when the plea agreement obligates the prosecutor not to advocate for the adjustment. United States v. Ubiles-Rosario, 867 F.3d 277 (1st Cir. 2017).

After surveying a number of First Circuit cases applying these general principles to a variety of factual scenarios, the Court extracted the following legal principle: “Under a totality-of-the-circumstances lens, an appellant need not show a complete out-and-out repudiation of a plea agreement before this court will conclude the government failed to uphold its end of the bargain. Rather, we ask whether the prosecutor’s overall conduct is reasonably consistent with making the promised recommendation, rather than the reverse.” (internal quotation marks and citations omitted). Thus, the Court explained that “when the net effect of the government’s behavior at sentencing undermines the benefit of the bargain upon which a defendant has relied, technical compliance with the plea agreement may not suffice to make up for other statements and behavior that can be viewed as an end-run around the terms of the agreement.” (internal quotation marks and citations omitted).

Applying these principles to the case present case demonstrated that the Government breached its agreement with Cortés-López, the Court concluded. Although the Government agreed to a total offense level based on a financial loss of $749,200, the AUSA nonetheless highlighted the substantially greater loss set forth in the presentence report and stated her agreement with the total offense level set forth by the probation department, which was a full 10 points higher than that to which she had agreed. She then reluctantly and without elaboration stated that the Government would “stand by” its sentencing recommendation of two years’ probation.

Although recognizing that the prosecutor is under no obligation to advocate for the agreed upon sentence, she was nonetheless required to offer some “minimal explanation to the district court about why the government agreed to the specific recommendation, at least when, as here, the recommended sentence is so drastically below the [sentencing range] the government thought accurately captured the details of the offense at the time the plea was negotiated,” the Court stated.

This conclusion was substantially supported by the decision in United States v. Brown, 5 F.4th 913 (8th Cir. 2021), in which the court held that the Government breached its plea agreement when it endorsed a higher base offense level presented in a presentence report than the one it and the defendant had mutually agreed upon in a plea agreement even though the prosecutor had not specifically championed a higher sentence at the sentencing hearing. Similarly, in the present case, AUSA’s failure in Cortés-López’s case “to provide at least some explanation for its decision to lend its prestigious imprimatur to such a dramatic downward variation likely caused the district court to view the government’s ‘stand by’ statement as just hollow words, undermining any notion that the government viewed the plea agreement as fair and appropriate,” the Court reasoned.

In light of this conclusion, Cortés-López satisfied the first two requirements of establishing plain error because the record plainly showed the Government breached its plea agreement with him by failing to provide the sentencing court with at least some minimal explanation for the probationary sentence it agreed to recommend. The next issue under the plain error test was whether the Government’s breach was prejudicial, which generally requires the defendant to show a reasonable probability of a different outcome absent the error. Rosales-Mireles v. United States, 585 U.S. 129 (2018).

The Court ruled that Cortés-López met this standard by showing that the Government deprived him “of its potential influence over the imposed sentence by neglecting to vocalize any reasons for agreeing to the below-guidelines recommendation.” In fact, the District Court specifically stated that it relied on the parties’ respective presentations when imposing sentence, so it is reasonable to believe that Cortés-López may have received a more lenient sentence had the Government adhered to the plea agreement.

Turning to the final factor required for relief on plain error review—whether the error impacted the fairness, integrity, or public reputation of judicial proceedings—the Court concluded that this factor was easily met here because “’violations of plea agreements on the part of the government serve not only to violate the constitutional rights of the defendant, but directly involve the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government.’” Quoting United States v. Riggs, 287 F.3d 221 (1st Cir. 2002). Thus, the Court held that the Government breached its obligations under the plea agreement and that Cortés-López satisfied the requirements for relief under plain error review.

Conclusion

Accordingly, the Court vacated Cortés-López’s sentence and remanded the case for resentencing. The Court specifically ordered that Cortés-López must be resentenced by a different judge on remand. See: United States v. Cortés-López, 101 F.4th 120 (1st Cir. 2024).

Additional source: United States v. Steven-Wykle, 552 F. Supp. 3d 208 (D.P.R. 2021).

Editor’s note: Anyone interested in the topic of the Government breaching its obligations under a plea agreement is encouraged to read the Court’s full opinion.   

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