Tuesday, August 28, 2018

No Hearing Required When Government Decides Not to File Substantial Assistance Motion

US v. Under Seal: The defendant pleaded guilty to conspiracy to commit access-device fraud and identity theft pursuant to a plea agreement. The agreement required them to “testify fully and truthfully” against others and, if so, the Government was to make a substantial assistance motion “i[f] its discretion deems it appropriate.” Another provision of the agreement provided that if the defendant breached the agreement, the Government was released from its obligations, which included (among other things) arguing for a particular loss amount, recommending a reduction for acceptance of responsibility, and recommending a sentence at the low end of the advisory Guideline range.

The defendant testified, but not up to the Government’s standards. Therefore, the Government declined to make a substantial assistance motion. The defendant argued that the Government could do so only after “proving at a hearing” that their testimony constituted a breach of the plea agreement. The district court did not hold such a hearing and eventually sentenced the defendant to 49 months, a slight variance from the advisory Guideline range (based, partly, on the assistance provided).

On appeal, the defendant argued that “the district court erred by permitting the government to decline to move for a substantial-assistance reduction without requiring it to prove by a preponderance of the evidence that [the defendant] had breached his obligations under the plea agreement.” The Fourth Circuit rejected that argument and affirmed the sentencing. Finding the language of the plea agreement unambiguous, the court concluded that the decision to file a substantial-assistance motion rested within the Government’s discretion. Moreover, as the party wronged by the defendant’s alleged breach, it was within its rights not to enforce the breach provision and release itself from its other obligations.

No comments: