United States v. Carvon Brown
5 F.4th 913
| 8th Cir. | 2021Background
- Brown pleaded guilty to knowingly possessing a stolen firearm under a plea agreement that stipulated the applicable Guidelines section as U.S.S.G. §2K2.1(a)(7) with a base offense level of 12.
- The PSR calculated a higher base offense level of 20 under U.S.S.G. §2K2.1(a)(4)(B), based on Brown being a prohibited person and the firearm having a large-capacity magazine; Brown objected.
- The Government’s sentencing memorandum and statements at both sentencing hearings endorsed the PSR’s higher calculation and proffered facts (e.g., a 17‑round magazine) supporting §2K2.1(a)(4)(B).
- At the second hearing the Government said it would “stick to the plea agreement” and remain silent on a recommendation, but also maintained it could argue for the higher guideline and only refrained because defense counsel said doing so might breach the plea agreement.
- The district court adopted the PSR’s level-20 calculation and sentenced Brown to 72 months’ imprisonment; Brown appealed alleging the Government breached the plea agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Government breached the plea agreement by advocating a higher Guidelines offense level than stipulated | Brown: Gov advocated the PSR’s higher base level (20) contrary to the agreement (12) — breach | Gov: Its statements did not breach; it later told the court to follow the plea agreement | Held: Government breached by endorsing a different guideline/level than in the plea agreement (Lovelace, Fowler) |
| Whether appellate waiver or forfeiture bars review of the breach claim | Brown: Waiver does not bar breach claims; he preserved the issue by timely objection | Gov: Appeal waiver or failure to request relief forfeits review | Held: Waiver doesn't bar breach claims; Brown’s timely, specific objection preserved the claim; court reviews de novo (Puckett, Pierre) |
| Whether the Government cured any breach by later saying the court should “stick to the plea agreement” | Brown: Later statement was insufficient to cure breach | Gov: The later statement cured or mitigated any earlier advocacy | Held: Not cured — cure requires an unequivocal retraction and the Government’s mixed statements and prior conduct were inadequate (Ligon, Munoz) |
| Remedy if breach occurred | Brown: Vacancy of sentence and resentencing | Gov: (argued adherence or curative effect) | Held: Vacate the sentence and remand for resentencing before a different district judge (Thompson) |
Key Cases Cited
- United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009) (advocating a higher offense level than in the plea agreement constitutes breach)
- United States v. Fowler, 445 F.3d 1035 (8th Cir. 2006) (government advocacy for PSR’s higher offense level can breach plea agreement)
- Puckett v. United States, 556 U.S. 129 (2009) (explains how to preserve objections under Rule 51 and that timely objection is required to preserve appellate review)
- United States v. Pierre, 912 F.3d 1137 (8th Cir. 2019) (appeal waiver does not bar review if the government breached the plea agreement)
- United States v. Thompson, 403 F.3d 1037 (8th Cir. 2005) (vacatur and reassignment for resentencing following a government breach)
- United States v. E.V., 500 F.3d 747 (8th Cir. 2007) (government breach of plea agreements implicates due process and public confidence)
- United States v. Ligon, 937 F.3d 714 (6th Cir. 2019) (if cure is possible, courts require an unequivocal retraction by the government)