United States v. Brown, No. 20-2170 (8th Cir. 2021)
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The Eighth Circuit vacated defendant's 72 month sentence for knowingly possessing a stolen firearm and remanded for resentencing before a different district court judge. In this case, defendant and the Government stipulated to a Sentencing Guidelines base offense level of 12. However, the Government later endorsed the PSR's contrary base offense level calculation of 20. The district court adopted the PSR's calculation.
The court concluded that if the government breached the plea agreement in the case, a defendant may proceed with an appeal despite an appellate waiver; defendant preserved the issue for appeal; and the government breached the plea agreement. Even assuming a cure is possible, other circuits require that the government offer an unequivocal retraction of its erroneous position to sufficiently cure a breach. The court explained that the Government's conduct is a far cry from an unequivocal retraction. In this case, the Government's half-hearted and begrudging statement that the district court should follow the agreement was not enough—especially taking a holistic view of the Government's plea-related conduct.
Court Description: [Gruender, Author, with Benton and Shepherd, Circuit Judges] Criminal case - Sentencing. If the government breached the plea agreement in the case, a defendant may proceed with an appeal despite an appeal waiver in the plea; defendant preserved the issue of breach for appeal; the government breached the plea agreement, in which it agreed to a base offense level of 12, by arguing in its sentencing memorandum that an offense level of 20 applied; assuming, without deciding, that the government could cure its breach, other circuits have held that only an unequivocal retraction of the erroneous position could cure a breach, and the government's actions here did not meet that standard; remanded for resentencing before a different district court judge.
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