Affirming Government’s Right to Disclose Post-Release Conduct Despite Plea Agreement

Introduction

The Eleventh Circuit’s decision in United States v. Errol Michael Gilyot, No. 24-11276 (11th Cir. June 2, 2025), clarifies the interplay between plea‐agreement commitments and the government’s duty to inform the sentencing court of a defendant’s post‐release criminal conduct. Errol Gilyot pleaded guilty to conspiracy to commit bank fraud under a written plea agreement that included a government recommendation for a low-end Guidelines sentence and preserved the government’s right to allocution. While on pretrial release, Gilyot allegedly resumed fraudulent activity. At sentencing, the district court varied upward from the Guidelines range based on that post-release conduct. On appeal, Gilyot challenged (1) the factual finding of continued fraud as clearly erroneous and (2) the government’s disclosure as a breach of the plea agreement. The Eleventh Circuit rejected both arguments and affirmed the 96-month sentence.

Summary of the Judgment

1. Gilyot was indicted for conspiracy to commit bank fraud involving stolen checks, forged documents, and ATM withdrawals. He pleaded guilty under a written agreement: the government would recommend a low-end Guidelines sentence and dismiss a related substantive fraud count, while preserving both sides’ right to allocution.

2. While released on bond, investigators collected circumstantial evidence—Instagram messages, text exchanges, and images of counterfeit checks—linking Gilyot to renewed fraudulent activity.

3. The presentence report recommended a Guidelines range of 51–63 months. The district court found by a preponderance of reliable evidence that Gilyot had violated his release conditions and varied upward to 96 months based on §3553(a) factors, including risk of recidivism and respect for the law.

4. On appeal, the Eleventh Circuit held that (a) the factual finding was not clearly erroneous under the “preponderance of the evidence” standard and (b) the government did not breach its promise by truthfully informing the court of Gilyot’s post-release conduct, because the plea agreement explicitly preserved the government’s right to allocution.

Analysis

Precedents Cited

• United States v. Little, 864 F.3d 1283 (11th Cir. 2017): Establishes that factual findings at sentencing are reviewed for clear error.
• United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997) and United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004): Describe the government’s burden—preponderance of the evidence—to prove disputed sentencing facts.
• Santobello v. New York, 404 U.S. 257 (1971): Holds that the government must honor material promises in plea agreements, including sentencing recommendations.
• United States v. Boatner, 966 F.2d 1575 (11th Cir. 1992) and United States v. Horsfall, 552 F.3d 1275 (11th Cir. 2008): Confirm that a prosecutor may provide pertinent information to the sentencing court so long as the plea agreement does not expressly forbid it.
• United States v. Taylor, 77 F.3d 368 (11th Cir. 1996) and United States v. Tripodis, 94 F.4th 1257 (11th Cir. 2024): Establish that plea‐agreement breaches are reviewed de novo and that the government is bound by its material promises.

Legal Reasoning

The court’s reasoning turns on two core principles:

1. Standard of Review and Burden of Proof: The district court’s finding that Gilyot resumed fraud was supported by social‐media messages and phone‐extraction evidence. Under the clear-error standard (Little) and the preponderance-of-evidence requirement (Sepulveda, Trainor), the appellate court must defer unless “left with a definite and firm conviction of mistake.” The panel held the evidence sufficiently reliable and specific, and thus not clearly erroneous.
2. Plea-Agreement Interpretation: Gilyot argued the government breached its promise by disclosing his post-release conduct. The court emphasized that the agreement (1) bound the government to recommend the low‐end Guidelines range, which it did, and (2) explicitly preserved the government’s right to allocute. The prosecutor’s allocution—informing the sentencing judge of relevant §3553(a) factors—did not negate the recommendation nor violate Santobello. Subsequent Eleventh Circuit decisions (Boatner, Horsfall) confirm that providing full information does not breach a recommendation promise when allocution is preserved.

Impact

This decision has significant implications for sentencing practice and plea‐agreement negotiations:

• It reaffirms that sentencing courts have broad discretion to consider post‐release conduct in evaluating risk of recidivism and respect for the law under 18 U.S.C. §3553(a).
• It clarifies that a government’s commitment to recommend a particular sentence does not immunize a defendant from having adverse facts presented, so long as the plea agreement does not prohibit allocution.
• It underscores the importance of preserving allocution rights; prosecutors should explicitly negotiate any limits on disclosing post‐plea information.
• Defendants and defense counsel must appreciate that disclosure of new criminal activity can justify an upward variance even when a low‐end recommendation is in the plea deal.

Complex Concepts Simplified

• Allocution: The prosecutor’s formal opportunity to speak at sentencing, presenting facts or arguments beyond the plea recommendation.
• Clear-Error Review: A deferential appellate standard requiring a “definite and firm conviction” that the trial court made a mistake in its factual findings.
• Preponderance of the Evidence: The burden that the government must meet to prove a disputed fact is “more likely true than not.”
• Plea-Agreement Breach: Occurs when the government fails to honor a material promise—e.g., not recommending at sentencing—made to induce the defendant’s guilty plea.
• Sentencing Guidelines Range & Variance: The Guidelines establish a recommended sentence range. A variance is a sentence above or below that range, based on §3553(a) factors such as public safety, deterrence, and the defendant’s history.

Conclusion

United States v. Gilyot affirms two key legal principles: first, sentencing courts may rely on a preponderance of reliable, circumstantial evidence to find post-release criminal activity, and such findings will not be disturbed absent clear error. Second, a government recommendation to the low end of the Guidelines does not preclude the prosecutor from providing adverse information during allocution when the plea agreement expressly preserves that right. This ruling reinforces the government’s obligation to present a complete record of a defendant’s conduct and the court’s discretion to impose an appropriate sentence under §3553(a), thus shaping future plea negotiations and sentencing hearings.