Tuesday, March 31, 2015

Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence

The PSR alleged 3 alleged drug transactions.  Chavful plead guilty to the third: 5kg of cocaine and 200lb of marijuana.  The first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued in his objection and at sentencing was merely the negotiation that culminated in the third transaction.  By holding him accountable for 15kg of cocaine and 1,200lb of marijuana, Chavez argued Probation was double counting the same transaction because they were fact-related.  Probation, and then the Government, argued the first was a separate transaction because of the intervening, second sale of 30kg of marijuana.  Chavful disclosed the second sale during the proffer interview and objected when the Government relied on the second sale to argue the first transaction was a separate transaction from the third.  Neither Probation nor the Government added the 30kg of marijuana to Chavful’s relevant conduct.

The plea agreement included the Government’s promise that “[a]ny information provided by Chavful, other than that charged in the pending indictment, in connection with Chavful’s assistance to the United States, including debriefing and testimony, will not be used to increase Chavful’s Sentencing level.”  The plea agreement specifically incorporates U.S.S.G. § 1B1.8, which prohibits the use of information obtained by the Government as part of a cooperation agreement from being used to determine the applicable guideline range.

The panel adopts Chavful’s interpretation that the Government cannot rely on protected information to advocate for a greater sentence.  The Government breached the plea agreement by using protected information to advocate for a greater sentence.  The sentence was vacated and remanded for re-sentencing.

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