Description: Los Angeles, California, criminal defense lawyer represented the Defendant charged with conspiracy to transport an alien into the United States.

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Erika Marie Plancarte pleaded guilty to one count of conspiracy to transport an alien into the United States. The
plea agreement bound the government to recommend a sentence of 90 days of imprisonment. We hold that the government did not implicitly breach the plea agreement by referencing Plancarte’s criminal history, expressing concern about Plancarte’s conduct and recidivism, clarifying an ambiguity in the presentence report, and declining to present mitigating evidence.

Plancarte entered into an agreement with the government, which provided that Plancarte would plead
guilty only to Count 1, and that the government would then dismiss the remaining counts. The parties made the plea
agreement pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, which provides that the
government’s “recommendation or request does not bind the court.”

The district court held a sentencing hearing, where Plancarte further argued that the government breached the
plea agreement. First, Plancarte argued that the government breached the plea agreement in referencing the four-level
enhancement for unaccompanied minors under § 2L1.1(b)(4). Second, Plancarte argued the government breached the agreement by stating that harsher sentences up to six months had not deterred Plancarte. Third, Plancarte argued that the government breached the agreement by highlighting Plancarte’s criminal history.

The district court rejected all three arguments. The district court agreed with the government that its reference
to § 2L1.1(b)(4) was merely correcting an inconsistency in the PSR, and it held that the government did not engage in
misconduct “in correcting a misstatement in the probation report.” The district court held that the government did not
err in advocating for the agreed-to sentence in the plea agreement. In the course of the hearing, Plancarte agreed
with the district court that the government was not required to present mitigating information regarding the defendant.
Therefore, the district court held that the government did not implicitly breach the plea agreement and denied Plancarte’s request to transfer the case to a different judge for sentencing. The district court sentenced Plancarte to 120 days of imprisonment and a 3-year term of supervised release. Plancarte filed a timely notice of appeal.

Criminal plea agreements “are essentially contracts between the government and a defendant.” Id. at 28. As
such, either party can breach the agreement by violating its terms. United States v. Myers, 32 F.3d 411, 413 (9th Cir.
1994) (per curiam). For example, the government cannot agree “to recommend a sentence at the low end of the
applicable guideline range,” but make “no recommendation” at all. Id. at 412, 413. Doing so violates “the terms of the
plea agreement” and requires reversal and remand for resentencing. Id. at 413. In addition to complying with the
literal terms of the contract, Farias-Contreras, 104 F.4th at 28, the parties must also comply with the “spirit of the plea agreement,” id. at 31. That means the parties’ arguments “must be made in good faith and advance the objectives of
the plea agreement.” Id. We have compared this to contract law, which “implies a covenant of good faith and fair dealing
in every contract.” Id. (citing Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003)). “This is
a fact-specific inquiry based on contract principles.” Id. In conducting this inquiry, courts must consider the “totality of circumstances.”

Outcome: The government did not implicitly breach its plea agreement with Plancarte. Instead, the government stuck to the letter of the agreement, and it did not make statements in bad faith to undermine the parties’ bargain. The district court properly reached its own conclusion as to Plancarte’s sentence, as anticipated by the plea agreement. Therefore, we enforce the appellate waiver in the plea agreement, and we dismiss the appeal.

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