Third Circuit Finds Prosecutor Breached Plea Agreement by Presenting Extensive Victim Impact Evidence

Does a prosecutor breach a plea agreement to recommend a sentence at the “low end” of the applicable Sentencing Guidelines range by “concentrat[ing]” its allocution “on aggravating victim-impact evidence”? This was the question of first impression addressed by the Third Circuit in its recent opinion in United States v. Davis, 105 F.4th 541 (3rd Cir. 2024).

In Davis, Luis Davis

signed a written agreement pleading guilty to three counts: brandishing a firearm during a violent crime…, carjacking…, and being a felon in possession of a firearm….In exchange, the Government agreed to dismiss the remaining counts and to recommend the seven-year statutory minimum sentence for brandishing the firearm. Central to this appeal, the Government also agreed to recommend “a sentence at the low end of the applicable guideline range,” as “determined by the Court,” for the grouped carjacking and felon-in-possession counts.

After receiving a harsh sentence, Davis appealed, claiming that the prosecution breached the plea agreement by centering its allocution around victim-impact evidence. The Third Circuit agreed, ruling as follows:

We have never held that victim-impact evidence undermines a low-end Guidelines recommendation per se. But we have held that the Government breaches an agreement to make no sentencing recommendation, or to recommend a within-Guidelines sentence, by using victim-impact evidence to implicitly support a higher sentence….

Some of our sister courts have held that the Government breaches an agreement to recommend a low-end Guidelines sentence where, as here, the prosecutor recounts the defendant’s crime while emphasizing the harm suffered by the victims….

[In this case at hand, t]he Government devoted much of its allocution to the physical and emotional trauma inflicted on [victims] Duncan and O’Dea. The prosecutor said that he wanted to give the Court the “perspectives from the victims.”…And so he did, recounting the victims’ harrowing ordeal in great detail, including the assaults, threats, and humiliation; the demise of the couple’s relationship; the lingering feelings of anger, fear, and resentment; and the loss of security.

[Duncan] and…O’Dea wake up to guns, punches, threats, and are assaulted in the middle of the night …. [T]hey are victimized verbally, physically, [and] traumatized with…threats, [“]I’ll kill you.[”] And Ms. Duncan makes a reference that one of them threatened to rape her….

Statements like these are typically fair game in most sentencing hearings. But where, as here, the Government has agreed to recommend a sentence at the low end of the Guidelines range, its allocution must align with that recommendation. The Government’s vivid recapitulation of Davis’s crime and the victims’ plight supported a harsh, not a lenient, sentence….

For the foregoing reasons, we conclude that the prosecutor’s allocution was inconsistent with Davis’s reasonable expectations in entering the plea agreement. The Government’s comments highlighting Davis’s intent, the reprehensible nature of his crime, and the harm suffered by the victims “could [not] possibly be construed as advocating for the lower half of the [Guidelines] range.”…Accordingly, we hold that the Government breached the plea agreement.

For me, the most interesting part of the court’s opinion was its conclusion that the prosecution can implicitly breach a plea agreement. Specifically, the court concluded that

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), “and its progeny proscribe not only explicit repudiation of the government’s assurances, but … [also] forbid end-runs around them.”…So the Government breaches a plea agreement when its overall conduct is “inconsistent with what was reasonably understood by the defendant when entering” a guilty plea….

We derive this rule from the “contract-law standards” governing plea agreements….Those standards “emphasize[ ] faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Restatement (Second) of Contracts § 205 cmt. a (1981). And because a defendant surrenders several constitutional rights by entering into a plea agreement, courts must “scrutinize closely the promise[s] made by the government” to determine whether those promises have been fulfilled….In sum, the Government must honor the spirit, as well as the letter, of the plea agreement.

I fully agree with this reasoning because it lines up with the arguments I made in Plea Agreements as Constitutional Contracts that courts should more readily find that prosecutors impliedly breached plea agreements by reference to commercial contract concepts like the implied covenant of good faith and fair dealing.

-CM