Case Information
*1 Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Bruce Swisshelm pleaded guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count of money laundering, in violation of U.S.C. § 1957, and was sentenced to a term of twelve months and one day of imprisonment on each count, to run concurrently. The government appeals from the sentence, contending that Swisshelm violated the parties’ plea agreement by arguing for a sentence below the range calculated under the United States Sentencing *2 Guidelines Manual (U.S.S.G. or Guidelines). We vacate the sentence and remand for resentencing before a different judge.
I.
Swisshelm and the government entered into a written plea agreement, under which Swisshelm agreed to plead guilty to one count of bank fraud and one count of money laundering and the government agreed not to bring any additional charges or seek additional sentencing enhancements. The agreement contemplated that the United States Probation Office would prepare a presentence report (PSR) that would inform the district court of Swisshelm’s advisory Guidelines sentencing range. Under ¶ 10(g) of the agreement, the government agreed not to “seek an upward departure from the Guidelines or a sentence outside the Guidelines range,” and Swisshelm agreed not to “seek a downward departure from the Guidelines or a sentence outside the Guidelines range.” The PSR calculated a total offense level of 25, a criminal history category of I, and an advisory sentencing range of 57 to 71 months’ imprisonment. The district court adopted the findings set forth in the PSR.
Notwithstanding the plea agreement’s unambiguous terms, Swisshelm argued for a below-Guidelines sentence, both in his sentencing memorandum and during the sentencing hearing. Swisshelm also submitted letters from members of his community attesting to his character, almost all of which opined that he should not receive any sentence of incarceration. The government several times objected to Swisshelm’s contra-bargain requests during the sentencing hearing, directing the court’s attention to ¶ 10(g) of the agreement. Defense counsel responded by saying that she believed that the agreement allowed her to argue for a variance, whereupon the court instructed her to continue with her argument. The district court ultimately varied downward from the Guidelines range and imposed the sentence set forth above.
The government argues that Swisshelm’s sentencing memorandum, the letters submitted therewith, and defense counsel’s request for a downward variance violated the plea agreement. It asks that the case be remanded for resentencing before a different judge. Swisshelm now concedes that his sentencing-hearing argument for a below-Guidelines sentence violated the plea agreement, describing the violation as “inadvertent,” a characterization the record belies. He argues that his breach did not affect the district court’s decision and that if remanded for resentencing, the case need not be assigned to a different judge.
II.
“We review questions regarding the interpretation and enforcement of plea
agreements
de novo
. Where a plea agreement has been accepted by the court, we
generally interpret the meaning of the terms in the agreement according to basic
principles of contract law.” United States v. Mosley,
We have not yet decided the appropriate remedy for the defendant’s breach of
a plea agreement. Other circuits have come to differing conclusions on this question.
Compare United States v. Williams,
We do not now decide the proper remedy for any future defendant’s breach of
a plea agreement, but in the particular circumstances of this case we decline to treat
Swisshelm’s breach of the plea agreement differently from a breach by the
*5
government. Although Swisshelm’s breach may not implicate the same constitutional
concerns raised by a prosecutor’s breach, principles of contract interpretation lead us
to hold Swisshelm accountable to the terms of the plea agreement. The parties agreed
that they would not request a sentence outside the Guidelines range, and the
government agreed not to pursue the several additional charges and Guidelines
enhancements it could have lodged against Swisshelm in return for his guilty plea.
Defense counsel’s request for a downward variance constituted a clear violation of
that agreement. Swisshelm thus received the benefit of the plea agreement—the
government’s forbearance from seeking an above-Guidelines sentence—but deprived
the government of its corresponding bargained-for benefit—Swisshelm’s forbearance
from seeking a below-Guidelines sentence. See Bowe, 257 F.3d at 345 (“By
fashioning a sentence below the applicable Sentencing Guidelines based on the . . .
violation of . . . the plea agreement, the district court denied the Government the
benefit of its bargain.”); Alexander, 869 F.2d at 95 (reasoning that although the
Supreme Court’s holding in Santobello was partly based on defendant’s constitutional
rights, “it also relies on the fundamental principle that one party cannot be held to a
bargain that the other party has breached”). Contra Bradstreet,
Thus, in accordance with the procedure we follow in the event of a government-
occasioned breach, we remand the case for resentencing before a different judge, who
may in the exercise of discretion consider the letters submitted on Swisshelm’s behalf
for the purpose of determining a sentence within the Guidelines range, but not for the
purpose of considering a downward departure or variance from the Guidelines range.
In doing so, “[w]e emphasize that this is in no sense to question the fairness of the
sentencing judge; the fault here rests on the [defendant], not on the sentencing judge.”
Van Horn ,
The sentence is vacated, and the case is remanded for resentencing in accordance with the above-stated directions.
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Notes
[1] In United States v. Goings, we departed from this general rule and affirmed the
district court’s judgment because the prosecutor’s breach did not affect the district
court’s decision.
[2] Swisshelm also argues that “the courts have held that even where the
government has breached the plea agreement, the defendant will not always be able
to show prejudice.” Appellee’s Br. 13 (citing Puckett v. United States,