Not All Plea Breaches Are Equal: Examining Heredia’s Extension of Implicit Breach Analysis

Arns, Kevin | April 25, 2016

When the government enters into a plea agreement with a criminal defendant that stipulates that the government will give a specific sentence recommendation in exchange for the defendant’s guilty plea, it can implicitly breach that agreement by clearly distancing itself from the recommendation at the sentencing hearing. In most circuits, the implicit breach of a non-court-binding plea agreement—an agreement where the defendant is bound to the guilty plea even if the court rejects the sentence recommendation—entitles defendants to a remedy. However, in 2014, the Ninth Circuit was the first circuit to hold that a defendant is entitled to a remedy when the government implicitly breaches a court-binding plea agreement—an agreement where the defendant is only bound to the guilty plea if the court accepts the plea agreement’s sentence recommendation.

This Note examines whether the same implicit breach analysis used for non-court-binding plea agreements should be applied to court-binding plea agreements. To examine this question, this Note balances the actual harms imposed on criminal defendants by an implicit breach in each context against the potential impact increased appellate scrutiny may have on prosecutors’ ability to fulfill their duties as ministers of justice. Ultimately, this Note concludes that court-binding plea agreements should not be subject to the same implicit breach analysis and, at the very least, should be subject to harmless error analysis.