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June 5, 2012

Intriguing split Tenth Circuit opinion on plea bargains and the sentencing process

A split panel of the Tenth Circuit has an interesting debate in US v. Oakes, No. 11-6005 (10th Cir. June 5, 2012) (available here) over broken plea bargains and resentencings. Here is how the majority opinion starts:

Upon entering a plea agreement with the government, Defendant Marcus D. Oakes pleaded guilty in the United States District Court for the Western District of Oklahoma to one count of distributing cocaine base. At the sentencing hearing, however, the government breached its promise in the plea agreement not to oppose Defendant’s request that his sentence be concurrent with a prior federal sentence, and the district court sentenced him to 37 months’ imprisonment to run consecutively to the other sentence.  When the breach was brought to the court’s attention a few minutes later, the court struck from the record the improper part of the government’s argument but resentenced Defendant to the same consecutive sentence.

On appeal Defendant contends that the breach requires that his sentence be vacated and resentencing be set before a different judge.  We have jurisdiction under 28 U.S.C. § 1291 and affirm.  Defendant does not seek, and we would not order, that he be allowed to withdraw his plea.  Therefore, the sole remedy for the government’s breach is resentencing.  Ordinarily, we would order resentencing before another judge.  But a defendant can choose to be resentenced before the same judge, that choice can properly be made by defense counsel, and defense counsel made that choice below.  Hence, there is no further remedy available for Defendant on direct appeal.

And here is how the dissent by Judge Lucero gets going:

In the majority’s view, this case is about which judge may conduct a resentencing under Santobello, and whether defense counsel alone may elect to forgo judicial reassignment. In my view, the question presented is far more substantial.  This case requires us to decide if counsel can singlehandedly waive a defendant’s right to obtain the benefit of his constitutional plea bargain — a right that is inextricably intertwined with the rights waived at the time of entry of a guilty plea.  I consider it beyond dispute that the decision to hold the prosecution to its promise belongs to the defendant, not to the whim of counsel.

June 5, 2012 at 05:47 PM | Permalink

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Comments

personaly based on this!

"At the sentencing hearing, however, the government breached its promise in the plea agreement not to oppose Defendant’s request that his sentence be concurrent with a prior federal sentence, and the district court sentenced him to 37 months’ imprisonment to run consecutively to the other sentence. When the breach was brought to the court’s attention a few minutes later, the court struck from the record the improper part of the government’s argument but resentenced Defendant to the same consecutive sentence."

New judge should have been AUTOMATIC! plus the lieing ass of a DA should have been canned! since these same fucktards refuse to let us JAIL EM!

Posted by: rodsmith | Jun 5, 2012 7:42:21 PM

rodsmith:

Too bad there are no DA's in federal court.

Posted by: John | Jun 6, 2012 6:58:39 AM

well john based on this!

"At the sentencing hearing, however, the government breached its promise in the plea agreement not to oppose Defendant’s request that his sentence be concurrent with a prior federal sentence,"

I have to figure there was some lieing sack of shit representing the govt there BESIDES the judge!

Posted by: rodsmith | Jun 6, 2012 11:54:00 AM

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