Whether the government's breach of a plea agreement by requesting legally invalid sentencing enhancements and advocating for an upward departure warrants reversal of convictions under Santobello v. New York

The calculations in David Joseph Bunevacz’s plea agreement generated a Sentencing Guidelines range of 78-108 months. The 210-sentence imposed by the district court resulted from various breaches by the government. Among other breaches, the government requested legally invalid Guidelines enhancements which violated the express language of the Guidelines. While rejecting the government’s proposed enhancements as legally invalid, the district court nonetheless employed the government’s rationales to impose upward variances under United States v. Booker, 543 U.S. 220 (2005) (which upward variances the government was prohibited from requesting under the plea agreement). Furthermore, the district court departed upward in criminal history category after the government presented invalid bases for doing so, including by asking the court to depart upward based upon alleged business disputes in the Philippines which were characterized as “rumor,” “gossip” and “chatter” in the entertainment blogs relied upon by the government. The government’s breaches signaled to the district court that the government did not support the low-end sentence that it was contractually obligated to recommend. The government’s arguments were not made in good faith to advance the objectives of the plea agreement, but to obtain a higher sentence than authorized by the plea agreement. The questions presented are: 2 1. Whether petitioner David Joseph Bunevacz’s convictions should be reversed because the government breached the plea agreement, in violation of this Court’s admonition in Santobello v. New York, 404 U.S. 257, 262 (1971), that when a plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled. 2. | Whether the Ninth Circuit’s decision conflicts with decisions in other Circuit Courts, which have held that conduct such as the government’s in this case constitutes a breach of the plea agreement requiring reversal. 3