A federal plea agreement is a binding contract between the U.S. Government and a criminal defendant. It is sometimes proffered but more often than not is the result of negotiations between Assistant U.S. Attorneys and criminal defense attorneys.


97 percent of all federal drug defendants in this country plead guilty, primarily through a negotiated plea agreement.


And why is this so?


Federal Trial Tax


Because, according to Human Rights Watch, federal drug defendants who elect to exercise their Sixth Amendment right to trial receive sentences three times longer than those who plead guilty.


Jacobi Tavares Hunter is a federal drug defendant convicted in the Southern District of Florida. He was indicted on four charges of possession with intent to distribute marijuana, cocaine, crack cocaine, and heroin.


Like many drug offenses, Hunter’s arrest stemmed from a police traffic stop, allegedly for having illegally tinted windows. The officers who stopped the vehicle stated they detected the odor of marijuana when they approached it. They ordered Hunter out of the vehicle and frisked him. An ensuing search found evidence of drug possession, and based on the amount, there was the statutory implied intent to distribute the drugs.


Hunter’s attorney filed a motion to suppress the evidence. The trial court conducted a hearing on the motion on February 4, 2015. Hunter testified at the hearing, conveying his version of events leading up to the traffic stop. The trial court was not impressed, finding that his testimony was not credible. The court denied the suppression motion.


Plea Agreement Offered


During the suppression hearing, the Government offered a plea deal. The deal called for Hunter to plead guilty to all four charges against him. In exchange, the Government stipulated it would agree to a sentence reduction based on “acceptance of responsibility—a routine stipulation consistent with U.S. Sentencing Guideline § 3E1.1(a).


The Government also stipulated that if the ensuing Presentence Investigation Report (PSI) determined that Hunter’s offense level to be 16 or above, it would file a motion “requesting an additional one level reduction” for acceptance of responsibility—a stipulation authorized when a defendant assists either in the Government’s investigation or defendant’s own prosecution by “timely notifying authorities of his intention to enter a plea of guilty,” relieving the Government of the responsibility of bringing the case to trial.


Defendant Accepted Plea Deal


There was nothing unusual about the plea deal. Hunter, therefore, accepted the deal.


On March 4, 2015, the trial court conducted a “change-of-plea” hearing. The court ordered that a PSI be prepared.


And this is where the judicial waters get murky.


The PSI was submitted to the court with the recommendation of a two-level increase for “obstruction of justice” (based on Hunter’s less than credible testimony at the suppression hearing) and did not contain a “reduction for acceptance of responsibility.”


Defendant Objected to PSI


Hunter objected to the PSI on a number of grounds, but mostly for the obstruction increase and the failure to include an acceptance of responsibility reduction.


It was time for the Government to step up to the plate and honor its “plea agreement” responsibility.


What did the Government do?


Government Defaulted on Plea Agreement


It not only failed to request its promised acceptance of responsibility reduction, prosecutors filed a motion seeking an “upward departure or variance” from the sentence actually recommended by the PSI.


The Government reneged on its deal.


Hunter countered with a motion seeking a “downward variance” based on the “physical and mental harm” he suffered during the arrest.


The trial court conducted a sentencing hearing at which Hunter argued the Government had breached the plea agreement.


The Government again failed to honor its agreement. Its reasoning? That prosecutors were not bound by the agreement to seek a reduction for acceptance of responsibility if the court concluded that Hunter had “obstructed justice” by “committing perjury” at the suppression hearing.


To say that Hunter’s counsel was upset would be that proverbial understatement.


Defense Counsel Seeks Specific Performance


Counsel sought “specific performance” of the guilty plea contract and asked that the case be assigned to another judge—both reasonable requests given the circumstances.


While the trial court stopped short of finding an actual breach of the agreement, the judge did express a concern that “the Government seems to give with one hand and take back with the other, because a defendant … would believe if he signed this agreement that he was going to get the acceptance of responsibility.”


And the waters got even murkier.


The trial court decided to give Hunter the acceptance of responsibility reduction to “solve this” problem because, as the court stated, “the decision to plead guilty is an important decision.”


Court Agrees, Prosecutors Continue to Argue for Upward Departure


Given the trial court’s reasoning, the Government conceded that Hunter was “probably” entitled to a three-level reduction but prosecutors continued to argue for their “upward departure or variance.”


The trial court “recalculated” the PSI’s recommended sentence, finding a new “guidelines range” of 18 to 24 months.


Hunter by any measure of reason should have received a sentence within that range.


Instead, the trial court imposed a 60-month term of imprisonment based on the Government’s request for an upward departure or variance because of Hunter’s alleged obstruction of justice.


This was a rotten situation all the way round. Not only did the Government breach its stipulation to the acceptance of responsibility reduction but moved for an offense level increase based on the court’s earlier observation at the suppression hearing that Hunter’s testimony was less than credible.


Fortunately, the Eleventh Circuit Court of Appeals was not persuaded by the Government’s conduct in this case. The appeals court noted that prosecutors offered the deal “after” they heard the trial court’s reservations about Hunter’s less than credible suppression hearing testimony.  In other words, prosecutors knew, or certainly should have known, that Hunter’s less than credible suppression hearing testimony constituted “obstruction of justice” before it offered the plea deal with the specific stipulation of recommending a reduction for acceptance of responsibility.


Court of Appeals Finds Government Breached Plea Agreement, Vacates Sentence


On August 26, 2016, the appeals court found that the Government’s “conduct constitute[ed] a breach of the agreement entered into by the parties.” The court vacated Hunter’s 60-month sentence and remanded for re-sentencing.


Valuable time and judicial resources were wasted because of the Government’s highly questionable ethical conduct in this case. There should be more accountability for this sort of prosecutorial misconduct than a mere re-sentencing order.