35 F.4th 37
1st Cir.2022Background
- DEA investigation of a Merrimack Valley fentanyl distribution network led to intercepted calls between Lessard and leader Sergio Martinez and surveillance that tied Lessard to deliveries.
- Search of Lessard’s residence uncovered >50 grams of fentanyl in his apartment, >2,000 grams in the building basement, cash, and firearms; a federal indictment charged him with conspiracy to distribute controlled substances.
- On eve of trial Lessard pleaded guilty under a plea agreement in which the government agreed to recommend a sentence at the bottom of the applicable advisory guideline range and Lessard waived direct-appeal rights if sentenced within or below the guideline range.
- The PSI initially yielded a guidelines range of 360 months–life; after resolving disputes the court recalculated the range to 135–168 months (TOL 31, CHC III).
- At sentencing the prosecutor stated he recommended a low-end guideline sentence but opposed any downward variance, arguing the facts warranted a "big sentence." The court imposed 150 months (mid-range). Lessard appealed, claiming breach of the plea agreement and that the breach voided the appeal waiver.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Lessard) | Held |
|---|---|---|---|
| Whether the government breached the plea agreement by urging a "big sentence" after promising to recommend the low end of the guideline range | Government complied by expressly recommending a low-end guideline sentence and legitimately opposed a downward variance | Government's rhetoric and opposition to variance amounted to an end-run around the promise and breached the agreement | No breach: prosecutor recommended the low end and permissibly argued against a variance; overall conduct met the promise (plain-error review failed) |
| Whether a government breach would void the plea's waiver-of-appeal provision | Waiver applies because sentence was within guideline range; in any event, no breach occurred | A breach would render the waiver ineffective and permit appeal | Court assumed for argument’s sake the waiver could be invalidated but declined to decide the novel question because there was no breach in any event |
| Standard of review for alleged breach | Plain-error review applies because Lessard did not object at sentencing | Lessard argued breach; did not preserve objection | Plain-error standard governs; Lessard failed to satisfy its demanding four-prong test |
| Scope of the prosecutor's obligation under the agreement (recommendation vs. affirmative advocacy) | Government had to recommend the low end but was not required to enthusiastically or extensively advocate for it | Government should have affirmatively argued why the low-end sentence was appropriate | The agreement imposed an obligation to recommend the low end, not to provide particularized advocacy or explanation; the recommendation was made and fulfilled |
Key Cases Cited
- Santobello v. New York, 404 U.S. 257 (1971) (prosecutor’s plea promises must be fulfilled)
- United States v. Almonte-Nuñez, 771 F.3d 84 (1st Cir. 2014) (analyzing whether prosecutor’s comments breached recommendation promise; consider totality of circumstances)
- United States v. Canada, 960 F.2d 263 (1st Cir. 1992) (promises in plea agreements judged by overall consistency with recommended conduct)
- United States v. Montañez-Quiñones, 911 F.3d 59 (1st Cir. 2018) (government may oppose alternatives and is not required to "pull its punches")
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error review applies when objections are not preserved)
- United States v. Olano, 507 U.S. 725 (1993) (four-part plain-error test)
- United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004) (breach of plea agreement can warrant resentencing or plea withdrawal)
- United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) (waivers should not bar appeals that challenge sentences violating material plea terms)
- United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (undeveloped arguments are deemed waived)