Court Tells U.S. Atty. No Ifs, Ands, or Buts After Clumsy Mistake

Federal case law summary: Criminal, plea agreement.

United States v. Diaz Jimenez. Criminal law, plea agreement.

Government in plea agreement agreed to sentence at bottom of guidelines range. At sentencing hearing, prosecutor mistakenly, but in apparent good faith, initially recommended sentence at top of range. Defense counsel objected, and prosecutor agreed that his recommendation was wrong, but equivocated in recommendation and stated, "I suppose a larger sentence could be appropriate."

The District Court sentenced in middle of range, and defendant appealed. The Court of Appeals held that this was a "serious breach of the plea agreement", and remanded for resentencing by a different judge. The court of appeals realized that the new judge will have read the appellate opinion, and noted that it expected "a different prosecutor . . . will appear before that judge, apologize for the clumsy mistake of the previous prosecutor, and recommend an 18 month sentence without any ifs, ands, or buts."

No. 10-1988, 622 F.3d 692 (7th Cir. Sept. 8, 2010).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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