(B)  Analysis.  The plea agreement is analyzed as a contract.[301] “Plea agreements are contracts,” and government must comply with the terms of the agreement.[302]  “When the government agrees to make a certain recommendation to the sentencing court, it is bound by the agreement to make that particular recommendation.”[303]  The government is to be held to the literal terms of its agreement, with all doubts construed in the defendant’s favor.[304]  Ambiguities in plea agreements are construed in favor of defendant.[305]

[301] Santobello v. New York, 404 U.S. 257, 264, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).  See also Scott & Stunts, Plea Bargaining as Contract, 101 Yale L. J. 1909 (1992).

[302] United States v. Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999).

[303] Id. at 1135; United States v. Quach, 302 F.3d 1096 (9th Cir. September 13, 2002) (government must determine at sentencing whether defendant has provided substantial assistance up to that date to warrant a U.S.S.G. 5K1.1 motion, and cannot defer the decision to a later date).

[304] United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986).   The government ordinarily must bear responsibility for any lack of clarity.  United States v. Herrera, supra, 928 F.2d at 772; United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988); United States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992), amended, 990 F.2d 1163 (9th Cir. 1993).  Even if the agreement could be said to be ambiguous, it must still be construed against the government.  United States v. De La Fuente, 8 F.3d 1333, 1338 (9th Cir. 1993).

[305] United States v. Camarillo-Tello, 236 F.3d 1024, 1026 (9th Cir. 2001).

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).