United States v. Cortes-Lopez, 101 F.4th 120

Alejandro Cortés-López pleaded guilty to conspiracy to commit mail and wire fraud for a scheme in which he solicited investments for fictitious loans, resulting in agreed losses of $749,200 according to the plea agreement.
A plea agreement stipulated a Total Offense Level (TOL) of 18 and a joint request for 24 months' probation, with the government agreeing to dismiss other charges and Cortés waiving appeal if sentenced to that term or less.
The Presentence Investigation Report (PSR) calculated a higher loss ($5.4 million) and greater victim impact, raising the TOL to 28 and corresponding guideline range to 78-97 months in prison.
At sentencing, the government verbally agreed with the higher PSR loss and enhancements but stated it stood by its 24-month probation recommendation as per the plea agreement.
The district court denied objections, sentenced Cortés to 24 months’ imprisonment (not probation), and imposed $5.4 million in restitution.
On appeal, Cortés argued the government breached the plea agreement by supporting the PSR’s higher loss/calculation and failing to advocate for the agreed sentence.

Issue	Cortés’ Argument	Government’s Argument	Held
Did the government breach the plea agreement at sentencing?	Govt. wrongly endorsed PSR’s higher TOL and failed to meaningfully support agreed probation sentence.	Govt. complied by formally requesting agreed sentence, did not undermine plea, and had duty to provide full information to court.	Yes; Govt. breached by endorsing higher TOL, giving ambiguous support for agreement, and failing to explain/support variance given new facts.
Is plain error review applicable because Cortés did not object below?	Any objection would have been futile; court would not permit argument.	Defendant forfeited the claim by not raising it at sentencing; plain error review should apply.	Plain error review applies—the record shows no cutoff of argument, and the breach argument was not made below.
Was Cortés prejudiced by the government’s breach?	Breach undermined plea deal and deprived him of benefit of government’s support.	No actual prejudice because court considered all arguments and facts; outcome would have been same.	Yes; prejudice shown because breach undermined value of plea and may have affected outcome.
Should the district court's judgment be vacated and remanded?	Yes; remedy is vacation of sentence and remand for resentencing.	No breach, so no remand necessary.	Yes; sentence vacated, remand to a different judge.

Santobello v. New York, 404 U.S. 257 (1971) (sets out importance of holding the government to plea agreement promises in criminal justice system)
Brady v. United States, 397 U.S. 742 (1970) (discusses the mutual benefits and legal principles underpinning plea bargaining)
Bordenkircher v. Hayes, 434 U.S. 357 (1978) (explains the mutuality of advantage in plea bargaining)
United States v. Frazier, 340 F.3d 5 (1st Cir. 2003) (prohibits end-runs or technical compliance that undermines the plea's benefit of the bargain)
United States v. Lessard, 35 F.4th 37 (1st Cir. 2022) (plea agreements must be met in both letter and spirit)
United States v. Canada, 960 F.2d 263 (1st Cir. 1992) (tests government’s overall conduct for reasonable consistency with the plea agreement)
United States v. Riggs, 287 F.3d 221 (1st Cir. 2002) (vacates sentence and remands for breach of plea agreement)
United States v. Clark, 55 F.3d 9 (1st Cir. 1995) (breach of plea agreement when government undermines agreed recommendation)