Published on: Friday, October 28, 2022

An Alabama man saw his 71-month prison sentence vacated by the Eleventh Circuit Thursday because the government failed to uphold its part of a plea agreement at sentencing proceedings (article available here).

The government’s breach of the plea agreement prejudiced Robert Brandon Malone and “seriously affected the fairness of the judicial proceedings,” the court said, remanding the case for resentencing before a different lower court judge.

Malone was indicted on three counts of wire fraud, one count of interstate transportation of a stolen vehicle, and one count of a stolen motor vehicle. Malone pleaded guilty on four of the counts, and in exchange, the government dismissed the fifth.

The government reserved the right to oppose a two-level reduction, given for acceptance of responsibility, in the event Malone engaged in conduct inconsistent with acceptance of responsibility before his sentencing date. It agreed, however, to move for an additional one-level reduction, provided Malone otherwise qualified, and to recommend a sentence within the range calculated under the sentencing guidelines.

The government sought a term of 66 months, which was within the range the probation officer recommended, but argued against reduction in the range for acceptance of responsibility and opposed a downward variance for what Malone said was an inflated criminal history score.

In opposing the downward adjustment, the government said that Malone had no integrity and would continue his criminal conduct upon release, among other things.

T he Eleventh Circuit found a breach. With the downward variances, Malone would have faced a guidelines range of 41 to 51 months, as opposed to 57 to 71.