Prosecutor’s complaints to judge that plea agreement’s sentence length was too low constitute breach of plea agreement

SENTENCING/PLEA United States v. Cachucha, No. 06-2215, ___ F.3d ___ (10th Cir. Apr. 27, 2007)(New Mexico). Appeal of sentence for involuntary manslaughter in Indian Country in violation of 18 U.S.C. §§ 1112(a), 1153. HELD: Plea agreement may be breached when government’s attorney is not only an unpersuasive advocate for agreement, but, in effect, argues against it. Therefore, where defendant pled guilty to charge of involuntary manslaughter as part of plea agreement with government that anticipated sentence of no more than sixteen months imprisonment, but prosecutor complained at sentencing that sentence was too low and district court sentenced defendant to thirty months imprisonment, government breached plea agreement. Because defendant did not seek to withdraw his plea, remedy for government’s breach is resentencing before different judge. Read the opinion here.