United States v. Malmquist

In United States v. Malmquist, —- F. 4th —-, No. 22-50872 (5th Cir. Feb. 6, 2024), the Fifth Circuit vacated the defendant’s sentence and remanded his case for resentencing because the Government breached its plea agreement with Malmquist.

From the start of Malmquist’s case, the trial court recognized his use of, and addiction to, methamphetamine. As the case progressed, Malmquist went through various iterations of drug treatment and testing, including inpatient treatment that he completed successfully. While on bond, he was arrested by state authorities who had found him in possession of methamphetamine. As a result, a federal magistrate judge ultimately revoked his bond and ordered Malmquist detained pending further proceedings.

After all that, the Government entered into a written plea agreement with Malmquist. In the agreement, the Government agreed to “recommend that [Malmquist] receive a three level downward adjustment for acceptance of responsibility.” In exchange, Malmquist agreed to waive his right to appeal or collaterally challenge his conviction and sentence.

Before sentencing, the Probation Office wrote a PSR that recommended the court deny Malmquist that three-level reduction because he had “noncompliance issues” on bond, and his bond was revoked. Malmquist objected to that recommendation, but the Government did not file any written response. At sentencing, the Government argued that the PSR “got this right” because “Mr. Malmquist has not learned a single lesson in the time that he was first arrested … until he was re-incarcerated.” At no time did Malmquist object or argue that the Government had breached its plea agreement. The court agreed with the Government and did not give Malmquist credit for accepting responsibility.

Ruling 1: The appeal waiver did not bar Malmquist’s appeal because “where the government has breached . . . a plea agreement, the defendant is necessarily released from an appeal waiver provision contained therein.” See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).

Ruling 2: The Government committed clear error by breaching the plea agreement. (In its written brief, the Government did not concede this point, although it did later, at oral argument.)

Ruling 3: Even though this issue was reviewed for plain error (because Malmquist did not object on this basis in the district court), Malmquist satisfied that standard here. The Fifth Circuit noted its presumption that a Government breach of the plea agreement affects an appellant’s substantial rights, which is even more likely if the Government “did not merely remain silent,” but instead “aggressively argued” for the opposite of what it had promised. On these facts, the Fifth Circuit found it reasonably likely that the district court would have imposed a lesser sentence if the Government had not breached the plea agreement. For those reasons, the Fifth Circuit vacated Malmquist’s sentence and remanded for resentencing.