(D)  Obstacles to Relief.  Judicial decisions have erected certain obstacles to gaining relief on account of a breach of an agreement as to sentence.  First, it has been held that when the government agrees to recommend a sentence pursuant to a plea bargain, it need not explain its reasons nor make the recommendation enthusiastically.[309]  Moreover, despite a plea agreement to make certain recommendations, the government has a duty to ensure that the court has complete and accurate information, enabling the court to impose an appropriate sentence.[310]  Thus, even if the prosecution has promised not to make any recommendation at sentencing, it can permissibly provide information regarding the offender’s background to the probation office.[311]  A plea bargain is not enforceable until it has been accepted by the court.[312]

[309] See United States v. Benchimol, 471 U.S. 453, 455 (1985).

[310] See, e.g., United States v. Read, 778 F.2d 1437, 1441-42 (9th Cir. 1985) (prosecutor is obligated to reveal to sentencing judge facts concerning defendant’s activities between conviction and sentencing despite government’s plea agreement to “take no position on what sentence would be imposed” because parties could not have reasonably understood plea agreement to include a promise to withhold such information).

[311] United States v. Maldonado 215 F.3d 1046 (9th Cir. 2000); United States v. Threw, 861 F.2d 1046 (7th Cir. 1988) (plea agreement under which prosecution promised not to make defendant's criminal history known to court is invalid).

[312] Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).

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).