United States v. Cuello
693 F. App'x 38
| 2d Cir. | 2017Background
- Defendant Noel Cuello pleaded guilty to conspiracy to commit wire fraud and stipulated to a Sentencing Guidelines range of 78–97 months (the "Stipulated Guidelines Range").
- The plea agreement (1) included a number-of-victims enhancement in the stipulated range, (2) expressly disallowed seeking guideline departures not in the agreement, but (3) permitted either party to seek a sentence outside the stipulated range based on 18 U.S.C. § 3553(a) and to present facts relevant to sentencing.
- The Draft Presentence Report (Draft PSR) omitted the number-of-victims enhancement but included a sophisticated-means enhancement (which the plea agreement did not adopt).
- The government objected to the Draft PSR’s omission of the number-of-victims enhancement but did not object to the sophisticated-means enhancement in the Draft PSR; the final PSR included both enhancements, producing a Guidelines range of 97–121 months.
- At sentencing the government requested a sentence "at least as long as 97 months" and presented additional adverse facts; the district court adopted both enhancements and sentenced Cuello principally to 108 months.
- Cuello appealed, arguing the government breached the plea agreement by how it handled the PSR and by its sentencing advocacy; the Second Circuit reviewed for plain error and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government breached the plea agreement by objecting to the Draft PSR’s omission of the number-of-victims enhancement while not objecting to the sophisticated-means enhancement | Government: permitted to correct omissions and present sentencing-relevant facts | Cuello: government’s silence on sophisticated-means enhancement and objection pattern breached plea terms | No breach; government not required to remain silent about agreed enhancements and its non-objection did not violate the agreement |
| Whether the government’s sentencing advocacy (requesting ≥97 months and presenting adverse facts) breached the plea agreement | Government: plea allowed parties to seek sentence outside stipulated range and present facts relevant to sentencing | Cuello: advocacy and introduction of extra facts violated the agreed limitations | No breach; plea expressly permitted §3553(a) arguments and presentation of sentencing facts |
| Standard of review for unpreserved breach claim | N/A | N/A | Plain-error review applies because Cuello did not object in district court; high bar to prevail |
Key Cases Cited
- United States v. Riera, 298 F.3d 128 (2d Cir. 2002) (plea-agreement interpretation governed by contract principles; look to parties’ reasonable understanding)
- United States v. Vaval, 404 F.3d 144 (2d Cir. 2005) (prosecutors held to meticulous standards in plea performance)
- United States v. MacPherson, 590 F.3d 215 (2d Cir. 2009) (failure to raise breach claim below reviewed for plain error)
- Puckett v. United States, 556 U.S. 129 (2009) (explaining the high bar of plain-error review)
- United States v. Lawlor, 168 F.3d 633 (2d Cir. 1999) (government’s failure to object to PSR does not automatically constitute a breach)
- United States v. Salcido-Contreras, 990 F.2d 51 (2d Cir. 1993) (government not required by plea agreement to make representations favorable to defendant at sentencing)