Government breaches plea agreement by seeking sentence enhancements beyond those reasonably understood by defendant to be part of agreement

SENTENCING United States v. Scott, No. 05-6082, ___ F.3d ___ (10th Cir. Jul.31, 2006)(W.D. Oklahoma). Appeal of sentence for transporting a minor in interstate commerce for purpose of prostitution in violation of 18 U.S.C. § 2423(a). HELD: Reversed and remanded for resentencing. Where presentence report included only sentencing facts contained in plea agreement and incorporated offense level and sentencing range as set out in plea agreement, government breached agreement by responding to district court’s request for briefing on additional facts related to other potential sentence enhancements by advocating for those enhancements and by advocating for upward departure sentence. Although plea agreement did not expressly preclude government from responding to district court’s request for additional factual information or briefing, plea agreement implied that government would not argue for other sentence enhancements. Thus, by advocating for additional enhancements and an upward departure sentence in response to district court’s request for additional information, government breached plea agreement by acting contrary to defendant’s reasonable understanding of plea agreement’s terms. Read the opinion here.