Pennsylvania Prisoner Smuggles Cellphones, Federal Prosecutor Breaches Plea Bargain
“Prosecutors must keep their promises,” declared the U.S. Court of Appeals for the Third Circuit on March 8, 2024, “[a]nd if they do not, they must make things right quickly, clearly, and fully.” But that’s not what happened in the case of Pennsylvania prisoner Danny Cruz, the Court found.
As PLN reported, Cruz bribed a guard to smuggle cellphones into the Dauphin County Prison while held there awaiting trial for attempted murder between October 2015 and January 2016. That earned him an extra 51 months on his federal prison sentence, and guard Kyle Bower got four months—two months in prison and two more on home detention. [See: PLN, Apr. 2023, p.63]. However, the Court then vacated Cruz’s sentence after finding prosecutors breached his plea agreement.
For bribing a public official, Cruz was charged with conspiracy to violate the Travel Act, 18 U.S.C. § 371. He pleaded guilty pursuant to an agreement in which the U.S. Attorney’s Office promised to recommend a total offense level of 14 under sentencing guidelines. But in Cruz’s presentence report, the Probation Office suggested a four-level enhancement.
Cruz objected, but the U.S. Attorney’s Office supported the enhancement—though the prosecutor subsequently backtracked and took a neutral position. Nevertheless, the district court denied Cruz’s motion to withdraw his plea and applied the four-level enhancement, less a three-level reduction for accepting responsibility for his crime. That yielded a final offense level of 15. Cruz was then sentenced to 51 months, the “top of the [guidelines] range,” the Third Circuit recalled.
On appeal, the Court said that plea bargains are “contracts between prosecutors and defendants,” though “not ordinary contracts,” since the “stakes are not goods or money, but liberty and justice.” The government argued that it merely provided “analysis” to the district court and wasn’t advocating for a longer sentence. But the Court rejected that argument. It found that the prosecution breached Cruz’s plea deal by endorsing the four-level enhancement in the presentencing report, which resulted in an offense level above 14. While some breaches of plea agreements may be curable, the Court allowed, the prosecutor failed to do so in this case.
“At a minimum, the prosecution must retract its erroneous position promptly and unequivocally,” the Court said, and the defendant “must get the benefit of his [plea] bargain.” Although the prosecutor took a neutral position on the enhancement after Cruz objected, that response was not unequivocal because it did not endorse a total offense level of 14 per the plea agreement. Nor did Cruz receive the benefit of the plea since he was sentenced based on a final offense level of 15.
The appellate court emphasized that Cruz had “immediately objected” to the violation of the terms of his plea agreement, and that the breach was not subject to harmless-error review. Since the government then failed to correct its breach, Cruz’s sentence was vacated and the case remanded for resentencing before a different district court judge. See: United States v. Cruz, 95 F.4th 106 (3d Cir. 2024).