United States v. Kriss

In United States v. Kriss, No. 23-40706 (5th Cir. Sept. 24, 2024) (unpublished), the Fifth Circuit held that the Government had not breached its plea agreement at sentencing. In short, the court reasoned that the Government may argue that a defendant did not accept responsibility even when it has promised to move for a reduced sentence if the district court decides the defendant has accepted responsibility.

In the plea agreement, the Government had agreed to move for a one-level reduction to the Sentencing Guidelines under USSG § 3E1.1(b) “if the district court determined that Kriss qualified for the two-level reduction under § 3E1.1(a)” — which applies to defendants who “accept responsibility” for their crimes — “and the offense level prior to operation of § 3E1.1(a) was 16 or greater.”

Kriss argued that the Government broke that agreement at his sentencing hearing by “(1) emphasiz[ing] that he filed a motion to withdraw his guilty plea 18 months after he pleaded guilty, (2) claim[ing] that he was making a ‘big deal’ about his autism diagnosis, and (3) stat[ing] that he needed to be held accountable because it was hard to deter someone like him who did not believe that he had a problem.”

The Fifth Circuit held that none of those actions breached the plea agreement, because the agreement “did not prohibit the Government’s arguments that the two-level reduction under § 3E1.1(a) was not warranted and that the sentencing factors outlined in 18 U.S.C. § 3553(a) supported the statutory maximum sentence.