Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is. Ninth Circuit (en banc): The gov't “implicitly breached its promise not to recommend a sentence in excess of the low-end of the calculated guideline range,” by making inflammatory comments at sentencing, but it wasn't an obvious breach, so we affirm. Concurrence: sigh. Um, “the Constitution demands that courts ‘scrutinize the government’s conduct to ensure that it comports with the highest standard of fairness,’” and this was not fair.
The case is United States v. Farias-Contreras, 21-30055 (9th Cir. June 3, 2024).