United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements

11 Pages Posted: 15 Feb 2015 Last revised: 25 Feb 2015

See all articles by Kevin Bennardo

Kevin Bennardo

University of North Carolina School of Law

Date Written: September 18, 2014

Abstract

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

Keywords: plea agreements, cooperation agreements, appellate waiver, criminal procedure, sentencing, resentencing, substantial assistance departure

Suggested Citation

Bennardo, Kevin, United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements (September 18, 2014). 71 Washington and Lee Law Review Online 160 (2014), Indiana University Robert H. McKinney School of Law Research Paper No. 2015-11, Available at SSRN: https://ssrn.com/abstract=2564578

Kevin Bennardo (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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