Government Breach of Plea Agreement is Plain Error Requiring Reversal

US v. Dawson: Dawson was charged with conspiracy to distribute crack and powder cocaine. He entered into a plea agreement in which the Government agreed to recommend that Dawson receive a two-level offense level reduction for his minor role in the conspiracy. The parties agreed that the final determination of the issue was left to the district court and that the terms of the plea agreement did not bind the court at sentencing. The PSR did not include the reduction and neither party objected to its absence. At sentencing, Dawson did not argue for a reduction, but did argue for a sentence reflecting the fact that he was not a leader or organizer of the conspiracy. The Government countered that he was "critical" to the conspiracy. The district court sentenced Dawson to 70 months in prison, the bottom of the Guideline range calculated without a minor role reduction. In doing so, it noted that Dawson was a "key player" in the conspiracy.

On appeal, Dawson sought resentencing based on the Government's breach of its promise in the plea agreement to recommend a minor role reduction. Applying plain error review (because Dawson did not object to the Government's breach at sentencing), the Fourth Circuit vacated Dawson's sentence and remanded for resentencing. The Government's concession that it breached established that there was error and that it was plain. The court went on to conclude that Dawson's substantial rights were affected because the error affected the sentence imposed by the district court, done as it was based on a Guideline range without the minor role reduction and based, at least partly, on the Government's breaching argument about Dawson's role in the conspiracy. Finally, the court decided to notice the error as the kind that affects the integrity of the judicial system, rejecting the Government's argument that the failure of Dawson and the Government to mention to agreement at sentencing operated as some sort of de facto modification to the plea agreement (which, itself, required all modifications to be in writing).