Guideline Sentencing: An Outline of Appellate Case Law on ...

Section VI: Departures
1999) (affirmed: government properly refused to file §3553(e) motion for defendant
who refused to testify at another’s sentencing hearing—defendant’s plea agreement
specifically provided that he “shall truthfully testify, if subpoenaed, . . . at any
trial or other court proceeding regarding any matters about which the United States
Attorney’s Office may request his testimony,” and “given his promise to testify against
his co-defendants at any type <strong>of</strong> proceeding, he was not entitled to assert a blanket
privilege and refuse to take the stand at the sentencing hearing”); U.S. v. Resto, 74
F.3d 22, 27 (2d Cir. 1996) (affirmed: although defendant did provide some assistance,
where he “repeatedly lied about his past criminal history, both before and
after entering into the cooperation agreement, in violation <strong>of</strong> his promise to ‘provide
truthful, complete and accurate information,’” and also committed further
crimes, “the prosecutor had ample, good faith grounds to decline to move for a
downward departure”).
The Sixth Circuit held that, like other sentencing factors, a defendant’s alleged
breach <strong>of</strong> the plea agreement must be adequately proved by the government before
it can refuse to file a promised §5K1.1 motion. The court remanded a case where
defendant’s agreement required that he not commit any further criminal acts, he
was a suspect in a homicide, and the government refused to file the motion based
on its belief he participated in the homicide. “However, . . . the district court found
that, while the government had ‘at least probable cause’ to believe that Benjamin
breached the plea agreement, the level <strong>of</strong> pro<strong>of</strong> did not rise to a preponderance <strong>of</strong>
the evidence. . . . Because the government failed to meet its evidentiary burden, it
was not free to decline to make the substantial assistance motion.” U.S. v. Benjamin,
138 F.3d 1069, 1073–74 (6th Cir. 1998). Cf. U.S. v. El-Gheur, 201 F.3d 90, 92
(2d Cir. 2000) (affirmed: where defendant’s plea agreement stated that he “must
not commit any further crimes whatsoever,” but he then escaped after pleading
guilty and before sentencing and remained at large for several years, defendant “forfeited
any [right to compel the government to file a §5K1.1 motion] when he jumped
bail and became a fugitive, in violation <strong>of</strong> the express terms <strong>of</strong> his cooperation agreement”).
Even if the government does move for departure, it can still violate the plea agreement
if it does not otherwise perform as promised. The Eighth Circuit remanded a
case where the government had agreed to file a §5K1.1 motion and recommend a
departure “<strong>of</strong> up to 50%,” but then told the court that it had “no specific recommendation
as to the sentence” and that defendant had already benefited from a
lesser charge, and introduced victim-impact statements that influenced the court to
deny the motion. U.S. v. Mitchell, 136 F.3d 1192, 1194 (8th Cir. 1998) (government’s
actions “violated the spirit <strong>of</strong> the promise and ultimately the plea agreement”). See
also section IX.A.4. Stipulations.
The D.C. Circuit held that “review by the district court remains available in cases
where the government’s refusal to move for departure violates the terms <strong>of</strong> a cooperation
agreement, is intended to punish the defendant for exercising her constitutional
rights, or is based on some unjustifiable standard or classification such as
race.” U.S. v. Doe, 934 F.2d 353, 358 (D.C. Cir. 1991) [4#4]. Note that the district
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