Intriguing Third Circuit sentencing loss closes out 2007

Though federal defendants had some big sentencing wins in the US Supreme Court with Gall and Kimbrough at the end of 2007, it is perhaps fitting that the year ends with a circuit loss for a defendant in US v. Williams, No. 05-4153 (3d Cir. Dec. 31, 2007) (available here).  In Williams, a Third Circuit panel splits over whether the defendant breached his plea agreement by arguing for a criminal history departure: the majority holds that he did and remands for resentencing before a new sentencing judge; the dissent complains that "here there was no breach in arguing for a guideline departure on the criminal history and defendant presented his argument for a variance and mitigation under the guidelines with the permission of the District Court."

Both opinions in Williams make for interesting reading, and any circuit ruling about sentencing and plea agreements are consequential given the frequency of pleas with stipulated sentencing terms.  In this context, I found especially notable the dissent's expression of concern by enforceability of certain plea terms in the wake of Booker:

I must also question whether a plea agreement to forgo argument on a crucial phase of sentencing, consideration of the § 3553(a) factors, should be enforceable.  To deny the sentencing judge the ability to carry out his statutory duty and responsibility through consent of the parties seems to undermine the sentencing procedure Congress has mandated.  The sentencing judge in this case chose to hear argument under § 3553(a), a ruling that was responsible and proper.

I have argued in a number of prior posts that Booker might cast new doubts on the validity of appeal waivers and other plea agreement terms that can undercut the policies reflected in the Sentencing Reform Act.  To my knowledge, however, this dissent passage presents the first judicial suggestion that some plea terms might be unenforceable.