No Breach of Plea Agreement by Government Arguing for Upward Variance on Remand

US v. Johnson: In 2018, Johnson was charged with a drug conspiracy count and possession with intent count and entered into a plea agreement with the Government to plead guilty to the possession-with-intent count. The parties stipulated to the relevant conduct and that Johnson was entitled to a reduction for acceptance of responsibility. Johnson agreed to waive his right to appeal “from a sentence in excess of the applicable Guideline range that is established at sentencing,” while the Government reserved the ability to “make a sentence recommendation” and present additional evidence to respond to arguments made by Johnson. The probation officer concluded that Johnson was a career offender and calculated his Guideline range accordingly. At sentencing, the district court varied down from the career offender Guideline range and imposed a sentence of 128 months in prison.

Johnson appealed, initially arguing that one of his prior conviction upon which the career offender designation was based had been modified in state court “such that it no longer qualified as a felony.” The Fourth Circuit granted a motion to remand the case for resentencing. The probation officer recalculated the Guideline range as 57 to 71 months in prison. The Government filed a motion for an upward departure or variance, arguing the court should reimpose the original 128-month sentence. The district court imposed a sentence of 120 months.

The Fourth Circuit affirmed Johnson’s 120-month sentence. Johnson argued that by arguing for the upward departure/variance the Government had breached the plea agreement. The court disagreed, noting first that Johnson had not made that argument in the district court, so it was reviewing for plain error. Regardless, the court rejected Johnson’s argument that “reading the agreement as a whole, the Guidelines Stipulation must be interpreted to limit the Government’s sentencing recommendation rights,” holding that no such agreed-to-limit was present in the agreement. In addition, the reservation of the ability to “make a sentence recommendation” was broad, “but that doesn’t make it ambiguous or vague.”