UNITED STATES OF AMERICA v. UNDER SEAL
US Court of Appeals for the Fourth Circuit, Traxler, August 22, 2018,
Plea Agreement – The Government was not required to prove that a defendant was in breach of a written plea agreement in order to decline its exclusive option, under the agreement, to recommend a downward variance for cooperation.

Facts:
A defendant pled guilty and agreed to “fully and truthfully” respond to all questions from law-enforcement as well as testify “fully and truthfully” before a grand jury and at trial.
As part of the agreement, the government agreed that, if the US Attorney’s Office “determines that the Defendant has provided substantial assistance in an investigation or prosecution of others, and if the Defendant has fully complied with all obligations…” it would recommend a downward departure at sentencing of two levels.
The defendant assisted the government during its investigation, but the US Attorney’s Office believed that he did not testify fully against his co-conspirators and instead downplayed their involvement.
The US went forward with the plea agreement, but did not recommend a downward departure for substantial assistance.
The defendant argued that he had complied with the agreement and was entitled to the downward departure. He argued that the government could only decline to recommend a downward departure if he was in breach of the plea agreement.
The trial court denied the defendant’s motion, finding that the plea agreement left the decision about recommending a downward departure to the Government. The court nevertheless imposed a sentence four levels below that calculated in the presentence report.
The Defendant appealed, arguing that the Government had to prove he breached the agreement in order to decline to recommend the downward variance.

Held: The Fourth Circuit held that the contract entered into voluntarily by the Defendant explicitly called for the Government to decide on its own whether or not to recommend a downward variance for cooperation.

From the Case: “The plea agreement here is unambiguous, and it clearly permits the action taken by the government. Accordingly, we reject Appellant’s invitation to re-write the plea agreement, and we hereby affirm his sentence.”