Suggestion that Prosecutor Would Not Have Agreed to Plea Terms Had She Had Additional Information Is a Breach of the Plea Agreement

 In United States v. Warren, the Sixth Circuit vacated Mr. Warren's sentence and remanded his case for a resentencing before another judge where the prosecutor breached the plea agreement between the parties. Interestingly enough, this was Davian Warren's second win before the Sixth Circuit, having previously had his sentence vacated and remanded for resentencing where the district court imposed a substantively unreasonable upward variance. United States v. Warren, 771 F. App'x 637 (6th Cir. 2019).

At his resentencing, Mr. Warren's counsel argued that the Court should honor the plea agreement as reflective of the will of the parties and impose a sentence subject to its terms. In response, the government advised it wanted to "clarify" something brought up by defense counsel but indicated it did not intend to violate the plea agreement. The government then asserted that it did not have all of the information relating to Mr. Warren's prior convictions at the time it entered its plea agreement, and that it "quite probably would have made different recommendations had it known that information." 

The defense objected, arguing that the prosecutor's remarks constituted a breach of the plea agreement and that Mr. Warren was entitled to specific performance of the plea agreement. The district court disagreed and stated the government's remarks were simply clarification. The district court again imposed an upward variance in Mr. Warren's case.

Writing for the majority, Judge Nalbandian noted, "We treat plea agreements like contracts" using the traditional principles of contract law. The government's remarks "brought a variance forward by implication - the remark case doubt on the adequacy of the Guidelines range and injected reservations about the plea agreement itself." As a result, the Sixth Circuit held, "The government cannot escape its duties under a plea agreement with a wink and a nod." It cannot suggest "in any way" that a variance is appropriate. As a result, Mr. Warren was entitled to a resentencing before a new judge.

Judge Nalbandian also wrote a separate concurring opinion to advocate for reviewing governmental plea breaches for harmlessness in the future. Because the government conceded the issue of harmlessness, the question is left open for another day.