USA v. Robert Brandon Malone, No. 20-12744 (11th Cir. 2022)
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Defendant seeks vacatur of his 71- month sentence. He contended the government breached his plea agreement by arguing at sentencing against recommendations it allegedly promised to make to support a lower sentence than Defendant received. The Eleventh Circuit subjected Defendant’s claims to plain-error review on direct review because Defendant never objected at sentencing that the government failed to live up to its bargain.
The Eleventh Circuit vacated Defendant’s sentence and remanded for resentencing before a different district judge. The court explained that plain error occurred when the government breached the plea agreement and the breach prejudiced Defendant and seriously affected the integrity, fairness, and public reputation of the proceedings. The court wrote that here, the government breached its promise in the plea agreement to recommend a sentence within the guidelines range by advocating for an above-guidelines sentence. Even though the government stated at sentencing that it recommended a 66-month sentence, it then said that this was not enough and that Defendant deserved a sentence two or three times higher—an argument at war with its “recommendation.” For these reasons, the error that was plain occurred here, and the error affected Defendant’s substantial rights.
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