United States v. Bruce Swisshelm
2017 U.S. App. LEXIS 3112
| 8th Cir. | 2017Background
- Swisshelm pleaded guilty to one count of bank fraud (18 U.S.C. § 1344) and one count of money laundering (18 U.S.C. § 1957) under a written plea agreement.
- The plea agreement (¶ 10(g)) prohibited both parties from seeking a sentence outside the Guidelines range: the government would not seek an upward departure and Swisshelm would not seek a downward departure.
- The PSR calculated offense level 25, Criminal History I, yielding an advisory Guidelines range of 57–71 months; the district court adopted the PSR findings.
- Despite the agreement, Swisshelm (via sentencing memorandum, letters, and counsel’s argument) urged a below-Guidelines variance; the government objected at sentencing based on the plea agreement.
- The district court accepted defense argument, imposed concurrent sentences of 12 months and one day on each count (below the Guidelines range).
- The government appealed, arguing Swisshelm breached the plea agreement; the Eighth Circuit vacated the sentence and remanded for resentencing before a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Swisshelm breach the plea agreement by seeking a below-Guidelines sentence? | Gov: Yes; Swisshelm’s sentencing memorandum, letters, and counsel’s argument violated ¶10(g). | Swisshelm: Any breach was inadvertent/technical and did not affect the court’s decision. | Yes. The court held defense counsel’s request for a variance violated the agreement. |
| Is the materiality/prejudice of the breach relevant to remedy? | Gov: Breach is material; remedy required regardless of effect on judge. | Swisshelm: Breach was harmless because sentence would stand. | Material and prejudicial here; whether harmless breaches might be treated differently reserved for another day. |
| What remedy follows a defendant’s breach of a plea agreement? | Gov: Remand for resentencing (and before a different judge). | Swisshelm: If remanded, resentencing need not be before a different judge. | Court, applying analogous remedy to government breaches, vacated sentence and remanded for resentencing before a different judge. |
| May the new judge consider mitigation letters when imposing a within-Guidelines sentence? | Gov: Letters may be considered only to determine a within-Guidelines sentence, not to justify a downward variance. | Swisshelm: Letters should be considered as before. | New judge may consider the letters for determining a within-Guidelines sentence but not for downward departure/variance. |
Key Cases Cited
- Santobello v. New York, 404 U.S. 257 (1971) (prosecutor’s promises in plea bargaining must be fulfilled)
- Mosley v. United States, 505 F.3d 804 (8th Cir. 2007) (interpretation/enforcement of plea agreements; remedy for prosecutor’s breach)
- Van Horn v. United States, 976 F.2d 1180 (8th Cir. 1992) (remand for resentencing before a different judge after breach)
- Bowe v. United States, 257 F.3d 336 (4th Cir. 2001) (government deprived of benefit when district court fashions below-Guidelines sentence after agreement)
- Williams v. United States, 510 F.3d 416 (3d Cir. 2007) (applying same remedy for defendant’s breach as for government’s breach)
- Bradstreet v. United States, 207 F.3d 76 (1st Cir. 2000) (affirming despite defendant’s breach where court not bound and government had opportunity to respond)
- Goings v. United States, 200 F.3d 539 (8th Cir. 2000) (declined to apply remand rule where government’s breach did not affect outcome)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard requires showing of prejudice)