United States v. Adam Livar, 108 F.4th 738

Adam Livar pled guilty to failing to register as a sex offender in violation of 18 U.S.C. § 2250(a).
Under the plea agreement, the government promised to recommend a mid-range guidelines sentence provided Livar accepted responsibility and committed no new crimes before sentencing.
Before sentencing, Livar made threatening statements during a recorded prison call, resulting in state criminal charges for menacing and harassment.
The government unilaterally decided Livar had breached the plea agreement, recommended a higher sentence, and did not wait for a judicial determination regarding the alleged breach.
The district court did not adjudicate the breach issue, found the government had not breached the plea agreement, and sentenced Livar to 30 months (high end of the range) and five years of supervised release.
The panel on appeal unanimously vacated the sentence and remanded, but split on due process requirements regarding the timing of a court's breach determination and the appropriate remedy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal is moot now that Livar is serving supervised release	Case is moot as Livar received minimum supervised release sentence and is out of custody	Appeal is not moot; district court can modify supervised release on remand	Appeal is not moot due to possible modification under 18 U.S.C. § 3583(e)
Whether the government can unilaterally decide a defendant breached a plea agreement and alter its sentencing recommendation	Government can act on its determination of breach without prior judicial determination, subject to later court review	Government must seek judicial determination of breach before acting inconsistent with plea agreement	Majority: Government may act first, but a court must ultimately resolve the breach dispute
What is the appropriate remedy when the district court fails to determine if there was a breach	Remand for factfinding and possible resentencing	Vacate and enter judgment of time served with unchanged supervised release	Majority: Remand for entry of time-served sentence and original supervised release term
Whether strict compliance with plea agreements is constitutionally required at sentencing	No, government may depart from agreement if it believes defendant breached, with subsequent court review	Yes, due process requires government to maintain benefit of the bargain until court finds breach	Court split: strict compliance not required before government acts, but breach must ultimately be determined by court

Santobello v. New York, 404 U.S. 257 (1971) (prosecutor's promise in plea agreement must be fulfilled; even inadvertent breach requires resentencing)
United States v. Mondragon, 228 F.3d 978 (9th Cir. 2000) (government's breach of plea agreements at sentencing is grounds for vacatur without harmless error analysis)
United States v. Alcala-Sanchez, 666 F.3d 571 (9th Cir. 2012) (strict compliance with plea agreement required; breach at sentencing taints proceeding)
United States v. Packwood, 848 F.2d 1009 (9th Cir. 1988) (disputes over breach of plea agreements must be resolved by district court, not government alone)
United States v. Plascencia-Orozco, 852 F.3d 910 (9th Cir. 2017) (government can act first but judicial determination of breach is ultimately required)