United States v. Robert Brandon Malone, 51 F.4th 1311

Background:

Malone was indicted on fraud and stolen-vehicle charges, released on bond, and allegedly committed a similar fraudulent sale in Jan. 2020 while on pretrial release.
On Feb. 18, 2020 Malone entered a plea agreement pleading to Counts 1–4 (Count 5 dismissed); the government agreed (subject to narrow exceptions) not to oppose a two‑level § 3E1.1(a) acceptance‑of‑responsibility reduction and to recommend a sentence within the Guidelines as calculated by the Court.
The plea agreement carved out that the government could oppose the two‑level reduction only if it learned the defendant acted inconsistently with acceptance of responsibility between the plea hearing and the sentencing hearing.
The PSR recommended denying an acceptance adjustment, yielding a Guidelines range of 57–71 months; Malone sought acceptance credit (which would have reduced the range to 41–51 months with the government’s promised recommendation).
At sentencing the government opposed the acceptance adjustment and relied solely on Malone’s Jan. 2020 pre‑plea conduct (conduct the government knew about when it made the plea deal); it also recommended 66 months but said that was “not enough” (saying he deserved double or triple), and the court denied the adjustment and imposed 71 months.
Malone appealed without having objected at sentencing; the majority applied Puckett plain‑error review, found the government breached the plea agreement in two ways, concluded the acceptance‑reduction breach caused prejudice and vacated and remanded for resentencing before a different judge; the dissent would have required collateral proceedings or found no district‑court error.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appropriate standard of review for an unpreserved claim that the government breached a plea agreement at sentencing	Malone: Puckett governs; unpreserved breach claims on direct appeal are reviewed for plain error	Dissent: such breach claims often require collateral (§ 2255) proceedings to develop the record about counsel and factual background; plain‑error review should target district‑court error only	Majority: Puckett controls — unpreserved breach claims on direct appeal are reviewed for plain error; the court applied that standard here
Whether the government breached the plea agreement by opposing a § 3E1.1 acceptance adjustment based solely on pre‑plea conduct it knew about when making the plea deal	Malone: promise not to oppose the two‑level reduction except for post‑plea conduct barred reliance on pre‑plea Jan. 2020 conduct; government breached	Government: PSR and probation officer already recommended denial; government argued PSR conduct justified opposition; also argued overlap between pre‑ and post‑plea facts	Court: Government plainly breached by basing opposition solely on pre‑plea conduct; breach was plain and affected Malone’s substantial rights (prejudice shown); fourth‑prong met — vacatur and remand for resentencing before a different judge
Whether the government breached by advocating a punitive sentence above the Guidelines despite agreeing to recommend a Guidelines sentence	Malone: government’s remarks that 66 months was insufficient and that he deserved double/triple amounted to arguing against its agreed recommendation	Government: it recommended 66 months (within Guidelines) and was free to oppose a downward variance; its extra commentary did not alter the Guidelines calculation	Court: Government breached by effectively arguing for a higher sentence (lip service), but Malone did not establish prejudice on this point because the court sentenced within the Guidelines range the court had calculated; breach found but not a basis for reversal alone

Key Cases Cited

Puckett v. United States, 556 U.S. 129 (2009) (plain‑error review governs unpreserved claims that the government breached a plea agreement on direct appeal)
Olano v. United States, 507 U.S. 725 (1993) (four‑part plain‑error framework)
Molina‑Martinez v. United States, 578 U.S. 189 (2016) (showing an incorrect higher Guidelines range establishes a reasonable probability of a different outcome for prejudice prong)
Santobello v. New York, 404 U.S. 257 (1971) (government breaches of plea bargains require appropriate remedy; plea bargains must be honored)
Berger v. United States, 295 U.S. 78 (1935) (prosecutor must not engage in foul play; duty of candor and fair advocacy)
United States v. Taylor, 77 F.3d 368 (11th Cir. 1996) (government may not pay mere lip service to plea promise while arguing for a contrary result)
United States v. Copeland, 381 F.3d 1101 (11th Cir. 2004) (scope of government promises measured by defendant’s reasonable understanding)
United States v. Hunter, 835 F.3d 1320 (11th Cir. 2016) (remedies for government breach include resentencing before a different judge or plea withdrawal)
United States v. Sosa, 782 F.3d 630 (11th Cir. 2015) (applied Puckett plain‑error review to an unpreserved claim that the government violated a plea agreement)
United States v. Block, 660 F.2d 1086 (5th Cir. Unit B 1981) (government has affirmative obligation under § 3661 and a duty of candor to present relevant sentencing information)