Forfeited Claim That Government Breached Plea Agreement Is Reviewed for Plain Error; Third Prong Requires Showing That Breach Affected Sentence

Puckett v. United States, No. 07-9712 (U.S. Mar. 25, 2009)

The question presented: "whether a forteited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure."

The answer (per Justice Scalia for a seven-vote majority): yes.

Some facts: Puckett was charged with armed bank robbery and a 924(c) count. He reached an agreement with the Government to plead guilty to both counts. The Government agreed that Puckett qualified for all three acceptance points, and also to recommend the low end of the advisory range. The Government moved for the third level before rearraignment. "Because of delays due to health problems experienced by Puckett, sentencing did not take place for almost three years" after rearraignment. In the meantime, Puckett helped another man defraud the Postal Service. After confessing that tidbit to his probation officer, the PO revised the PSR and recommended denial of acceptance. When the case finally got to sentencing, the Government opposed acceptance, remarking that its third-level motion was filed "a long time ago." The district court denied acceptance on the ground that one who commits another crime while awaiting sentence rarely gets acceptance. But the judge followed the Government's recommendation for a low-end sentence, which was 262 months on the robbery count plus 84 months on the gun count. With acceptance, the low end of the robbery count would have been 188 months.

Importantly, at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.

Puckett appealed, arguing that the Government breached the plea agreement. The Government, for some reason, conceded the breach, but argued that Puckett forfeited his claim by not raising it in the district court. The court of appeals agreed with the Government, and reviewed for plain error. It held there was error that was plain, but that Puckett failed to show the error affected his substantial rights in light of the district court's comment that acceptance is rarely given when a defendant continues to commit crimes.

The Supreme Court granted cert to resolve a circuit split. And, as you know by now, held that a forfeited claim that the Government breached a plea agreement is reviewed for plain error. Why? Because there's nothing about that issue that justifies disregarding the general rule requiring contemporaneous objections and reviewing forfeited claims for plain error. The Court also:

• Declined once again to decide whether a structural error automatically satisfies the third prong of plain error review, "because breach of a plea deal is not a 'structural' error[.]"
• Also declined to decide whether the automatic-reversal rule of Santobello v. New York---which applies when "the Government's breach of a plea agreement has been preserved"---survives more "recent elaboration of harmless-error principles in cases such as Fulminante and Neder."
• Explained that, on the third plain-error prong, "[w]hen the rights acquired by the defendant relate to sentencing, the 'outcome' he must show to have been affected is his sentence."
• Further explained that "[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis[,] . . . emphasiz[ing] that a 'per se approach to plain error review is flawed.'"

Justice Souter dissented, joined by Justice Stevens:

I agree with the majority that plain error is the proper test, but depart from the Court’s holding that the effect in question is length of incarceration for the offense charged (as to which the error here probably made no ultimate difference). I would hold that the relevant effect is conviction in the absence of trial or compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.

Under that view, "a defendant's substantial rights have been violated whenever the Government breaches a plea agreement, unless the defendant got just what he bargained for anyway from the sentencing court." And the fourth prong would always be satisfied too, as "the fairness and integrity of the Judicial Branch suffer when a court imprisons a defendant after he pleaded guilty in reliance on a plea agreement, only to have the Government repudiate the obligation it agreed upon." That view did not carry the day.