On March 25, 2009, the Supreme Court issued its opinion in Puckett v. United States, 07-9712. (See http://www.supremecourtus.gov/opinions/08pdf/07-9712.pdf). The decision was made by a 7-2 majority, with Justice Scalia writing the opinion for the majority. Justice Souter dissented, and was joined by Justice Stevens.
In any case that an attorney receives a decision he or she personally disagrees with, that attorney is tempted to complain that judges were unfair or did not understand the issues presented. That is not my intent at all. However, there are a couple points arising from the decision that may have unexpected consequences.
The first has to do with the type of prejudice required to satisfy a "plain error" evaluation under Rule 52(b). In Puckett, the majority stated: "Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been affected is his sentence." Puckett, Slip op. at 12, n.4.
Unfortunately, it is my belief that no defendant will ever be able to satisfy this requirement. 18 USC 3553(a) states that a district court, in determining the particular sentence to be imposed, "shall consider" many different types of factors provided in that statute in determining a sentence. A district court judge must by law consider all these factors in imposing sentence. As the 3rd Circuit recently noted: "To be procedurally reasonable, a sentence must reflect a district court's meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a). A district court "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority." Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d 203 , 2007 WL 1772146, at *12 (2007). A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account. Cooper, 437 F.3d at 329." United States v. Lessner, 498 F.3d 185, 203 (3rd Cir. 2007).
Because a district court judge is bound by law to consider all the factors listed under 3553(a), as a practical matter, it is difficult to imagine a sentence that would ever be found by an appellate court to have been determined solely by a factor not even listed under 3553(a), i.e., an agreement by the government to take or forgo taking an action that later is determined to have been breached. In effect, Puckett forecloses all Rule 52(b) relief when the defendant fails to object to the Government's breach of a plea agreement.
Another troubling point is that the Puckett decision may really be only half of the equation. The "other shoe" that may be dropping soon is when a defendant does object to a breach of the plea agreement. In Santobello v. New York, 404 U. S. 257 (1971), the Supreme Court held "that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved, but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262." Puckett, slip op. at 12. However, in Puckett, the Supreme Court indicated it was an open question whether Santobello was still good law. "We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder." Id., n.3.
Under the "harmless-error" test, an appellate court applies Rule 52(a), which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" "When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record -- a so-called "harmless error" inquiry -- to determine whether the error was prejudicial." United States v. Olano, 507 U.S. 725, 734 (1993).
Here, Puckett has seemingly answered this question- prejudice is only established when the breach affects the "outcome" of the defendant's sentence. It arguably does not matter then if the defense attorney objects. If no prejudice resulted to the defendant from the breach, the defendant cannot prevail. Further, a breach of a plea agreement is, according to the majority, not a structural error which would preclude Rule 52(a) consideration. "[B]reach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra[.]" Puckett, Slip Op. at 11. While the Puckett majority held in passing that its earlier decision in Santobello (and presumably its automatic reversal standard with no required showing of prejudice) was still applicable in cases where the Defendant objects to a plea breach, I believe that the Government will challenge an objected to breach of a plea agreement as not amounting to "harmless error" in a future appeal.
Another sign Santobello is in trouble is the Puckett majority's casting aside its brethren decisions from the same time period. In Puckett, the Supreme Court distinguished or overruled its decisions holding that a plea agreement cannot stand if induced by "misrepresentation" including "unfulfilled" promises (Brady v. United States, 397 U. S. 742 (1970) and that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." (Mabry v. Johnson, 467 U. S. 504, 509 (1984)). See Slip Op. at 8-9, n.1. If these "bedrocks" of Constitutional law are not safe, can Santobello be far behind?
As Justice Souter wrote in his dissent, "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here." While the Supreme Court majority had an easy target in Mr. Puckett, the rules it set out may have unintended adverse results. The Puckett decision unfortunately may undermine the trust and confidence in the plea system and encourage United States Attorneys to breach plea agreements.
