A breach of a plea agreement may occur at sentencing, as, for example, where the prosecution has agreed to stand silent or take or refrain from taking certain positions at the sentencing hearing.[297]  A breach of the plea agreement may be brought about by the prosecutor in making arguments or recommendations at sentence.[298]  See Prosecutorial Misconduct discussion, § 7.108, infra, and discussion of breach of plea agreement as a ground to vacate a conviction, § 6.41, supra.

[297] United States v. Franco-Lopez, 312 F.3d 984 (9th Cir. November 27, 2002) (government breached plea agreement by recommending against “safety valve” departure without independent finding by Probation Department that safety valve was not applicable); United States v. Diamond, 706 F.2d 105 (2d Cir. 1983).

[298] United States v. Moscahlaidas, 868 F.2d 1357 (3d Cir. 1989) (prosecution breach of agreement that it would take no position concerning imposition of custody sentence, by making adverse written and oral statements concerning defendant’s character).

Ninth Circuit

POST CON RELIEF " GROUNDS " BREACH OF PLEA AGREEMENT
United States v. Heredia, 768 F.3d 1220 (9th Cir. Oct. 8, 2014) (vacating sentence on grounds that the government violated the plea agreement by making repeated inflammatory references to the defendant's criminal history in its sentencing memorandum, in effect arguing for a higher punishment than it had agreed to recommend; the court reversed the sentence, not the conviction, since the defendant waived any argument the error invalidated the conviction itself).