byMichael D. Schwartz and Harry Sandick on April 24, 2019
In United States v. Walker, 17-1896-cr (April 4, 2019), the Second Circuit held that the Government breached its plea agreement with the defendant by advocating for a term of imprisonment that was substantially higher than the Government’s initial sentencing estimate in the plea agreement. The decision addresses so-called “Pimentelestimates” (that will be addressed below*) and used in the Eastern District of New York, in which the Government provides the defendant with pre-sentencing notice of its calculation of the applicable Sentencing Guidelines range in a plea agreement, cautioning that this estimate may change in the future.
The court held here that, if the basis for the new enhancements were from information known from the outset when the government made the estimate, the Government is bound by that initial estimate despite the cautionary language declaring that it is not bound. The case was remanded for resentencing to a new district judge.
Background
In October 2011, defendant entered into an agreement with the Government to plead guilty to one count of conspiracy to distribute at least 200 grams of cocaine. In the plea agreement, the Government provided its “estimate” that defendant’s adjusted offense level under the Sentencing Guidelines was 29, resulting in a Guidelines range of 108 to 135 months’ imprisonment. The Government changed its position at sentencing calling for for a guideline range of 360-life.
The court held the enhancement illegal because it was “based upon information known to the [Government]” at the time its initial non-enhancement estimate was made notwithstanding the language in the plea agreement that said that the Government’s Guidelines estimate was “not binding” and a higher estimate would not entitle the defendant to withdraw his plea. The Court concluded that the defendant’s “reasonable expectations” had been violated, and the cautionary language in the plea agreement had not put him “on notice about this particular degree and kind of change.” In other words: it would not be fair.
The Court concluded that the proper remedy was specific performanceof the plea agreement (i.e. resentencing with a Pimentelestimate of 108 to 135 months) with a different district judge.
*Fn The Government’s practice of including estimated Guidelines ranges in plea agreements dates back at least to the Second Circuit’s decision in United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991) where the wrote that it would be good practice for the Government to provide pleading defendants with “the likely range of sentences that their pleas will authorize under the Guidelines,” while recognizing that “the Government is under no legal obligation to provide this information.”