If you are a drug dealer with a Criminal History Category of I, and you cooperate, sign an appeal waiver, and then breach the appeal waiver because you are unhappy with the sentence of 188 months (151 to 188 months was the range after the cooperation departure motion) rather than somewhere at or below the statutory maximum of 240 months (without the statutory max., the range was 262 to 327 months) , what’s the worst that can happen? According to the Third Circuit, a defendant who breaches the plea agreement in such a situation will find his 188 month sentence vacated, and the case remanded for resentencing without the motion for departure! See United States v. Erwin, No. No. 13–3407 (3rd Cir., August 26, 2014). That is, your breach of the appeal waiver just cost you up to 52 months of extra prison time.
The Third Circuit applied contract principles to reach this result. A civil practitioner makes this point: Contract principles are intended to put the government in the same place that it would have been absent the breach. That would require the defendant to pay the cost of the government’s appeal. Contract principles are not intended to be punitive, and more than four years extra in prison appears to be punitive rather than restorative in nature. The correspondent asks: Is the remedy chosen by the Third Circuit consistent with contract principles the court claims to apply?
What do you think?