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December 30, 2009

Second Circuit finds prosecutor's sentencing advocacy does not justify a plea withdrawal

The Second Circuit today has an interesing little discussion of pleas and sentencing advocacy in US v. MacPherson, No. 08-1829 (2d Cir. Dec. 30, 2009) (available here). Here is how the ruling starts:
This criminal appeal challenges a sentence for a narcotics violation on the ground that the Government violated the plea agreement by recommending a sentence higher than the range estimated to be applicable at the time of the plea.  The appeal also challenges the reasonableness of the sentence, which included 262 months’ imprisonment.  Carlos MacPherson appeals from the April 15, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge).  Applying plain error review to the challenge to the plea agreement, see Puckett v. United States, 129 S. Ct. 1423, 1428-33 (2009), we conclude that, if any error occurred with respect to the plea agreement, it was not plain error, and that the sentence survives review for reasonableness.  We therefore affirm.

December 30, 2009 at 12:00 PM | Permalink


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I haven't read the opinion or the plea agreement, but it seems clear that the correct remedy -- if in fact there was a government breach of a promise not to recommend a high sentence -- is not vacating the agreement and plea, but vacating the sentence and orderng a re-sentencing at which the government would be required to adhere to its promise. There is no need to go beyond that (again, assuming the government was in breach to begin with).

Posted by: Bill Otis | Dec 30, 2009 12:15:09 PM

This opinion is terrible for defendants. It basically says that the government's representations contained in Pimentel letters and plea agreements are meaningless, because if probation (or the judge) decides to include other things, the government can adopt that position at sentencing.

The opinion also points out that the agreement only binds the defendant (which is standard language here in the SDNY and EDNY). So, if a rare case comes around where the guidelines estimate is lower than what the plea agreement states, the defendant would not be allowed to actually argue for that range (but would be able to argue for it under 3553).

Posted by: NYC Lawyer | Dec 31, 2009 12:21:03 PM

if the deal by its terms is only binding on one party, doesn't that kind of mess up the contract analogies often used w/r/t plea bargains?

Posted by: Anon | Jan 2, 2010 8:05:58 PM

What you expect! The govt has basically said plea bargains mean nothing for over a decade. Just look at the 100's of thousands of sex offender convictions that had plea bargains with no mention of the registry that are now required to obey and register for life.

Posted by: rodsmith3510 | Jan 2, 2010 10:32:04 PM

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