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September 1, 2014
  USA v. Christopher Erwin - Third Circuit
Headline: Third Circuit Holds That Government Is Excused From Its Plea Agreement Obligations When a Criminal Defendant Violates the Agreement by Filing an Appeal

Areas of Law: Criminal Law

Issues Presented: What remedy is available to the Government when a criminal defendant knowingly and voluntarily executes a waiver of his right to appeal in return for promises from the Government and then violates his plea agreement by filing an appeal?

Brief Summary:
This case presents a question of first impression -- what remedy is available to the Government when a criminal defendant violates the plea agreement, including a waiver of right to appeal, by filing an appeal. The Court concluded that Defendant's appeal was within the scope of his appellate waiver, to which he knowingly and voluntarily agreed. Therefore, Defendant breached the plea agreement by appealing, and the appropriate remedy for this breach was specific performance of the agreement's terms. In this case, the agreement called for de novo resentencing in which the Government no longer has the obligation to request downward departure from the Sentencing Guidelines. The Court reasoned that de novo resentencing was just and consistent with the basic principles of contract law. Further, it complied with the plain language of the plea agreement. Accordingly, the Court vacated Defendant's sentence and remanded for de novo resentencing.

Extended Summary:

Christopher Erwin ("Defendant") managed a large-scale oxycodone distribution ring that operated throughout the State of New Jersey as well as other locations. On May 9, 2011, the Government filed a criminal complaint against Defendant and twenty-one co-conspirators in the United States Court for the District of New Jersey. The complaint charged each defendant with conspiracy to distribute and possess with intent to distribute oxycodone, a Schedule II controlled substance.

On May 8, 2012, Defendant executed a written plea agreement with the Government. Defendant agreed to plead guilty to conspiracy in return for the Government's agreement not to bring further criminal charges against Defendant in connection with the conspiracy. The parties agreed that the Sentencing Guidelines offense level applicable to Defendant was 39, and that a sentence with that Guideline range was reasonable. Additionally, Defendant voluntarily waived the right to file any appeal. The agreement dictated that if Defendant violated any provision of the plea agreement, the Government would be released from its obligations under the plea agreement. Following a letter from the Government to the court asking to depart downward from the otherwise applicable Guidelines range because of Defendant's cooperation with the Government, the court imposed a within-Guidelines sentence of 188 months, three years of supervised release, and a $100 special assignment.

Defendant timely appealed, arguing that the District Court's use of offense level 39 as its starting point for downward departure was in error because the statutory maximum was 240 months, a sentence less than the 262- to 327-month Guidelines range for offense level 39 and criminal history category of I. Defendant averred that this deprived him of the benefit of his plea bargain and the full five-level downward departure the District Court agreed he would receive. The Government did not cross-appeal but contended that the Court should vacate and remand for resentencing where it would modestly increase Defendant's sentence in light of his breach of the plea agreement.

The Court rejected Defendant's argument that the District Court deprived him of his due process right to receive the full benefit of his bargain with the Government. The Court held that Defendant's due process claim failed because it found that the record did not indicate any promise from the Government that it would specifically request a five-level downward departure, much less that the court would apply the departure to the statutory maximum.

The Court then addressed the appropriate remedy for the Government as a result of Defendant's breach of the plea agreement. The Government argued that merely dismissing Defendant's appeal and affirming his sentence would not be sufficient because Defendant's breach incurred substantial costs for the Government, and because it would not adequately deter other defendants from similar breaches. The Court explained that plea agreements, as bargained-for exchanges, are evaluated by contracts standards. Reviewing Defendant's sentence de novo, the Court looked to the plain meaning of the agreement. The Court found that the relevant language was unambiguous and that, by waiving his right to appeal, Defendant relinquished the right to appeal and promised not to exercise it. Citing contract law, the Court explained that a party should be prevented from benefitting from its own breach. The Court reasoned that Defendant received the full benefit of the bargain, while the Government was forced to devote valuable resources to litigating an appeal that should never have been filed. Accordingly, the Court agreed with the Government that resentencing was warranted in this case. Therefore, the Court vacated Defendant's sentence and remanded for resentencing where the Government will be relieved of its obligation to seek a downward departure.

The Court concluded that de novo resentencing was just and consistent with basic principles of contract law and the plain language of the plea agreement.

To read the full opinion, please visit

Panel (if known): McKee, Chagares, and Nygaard, Circuit Judges

Argument Date: May 20, 2014

Date of Issued Opinion: August 26, 2014

Docket Number: No. 13-3407

Decided: Vacate judgment of sentence and remand to the District Court for resentencing before a different judge

Case Alert Author: Jaclyn Poulton

Counsel for Appellants: Jeffrey M. Brandt, Esq.
Counsel for Appellee: Mark E. Coyne, Esq., Norman Gross, Esq.

Author of Opinion: Judge Chagares

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/01/2014 10:05 AM     3rd Circuit  

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