Disclaimers Don’t Cure a Breach: Fifth Circuit Holds That Prosecutorial Advocacy for an Above‑Guidelines Sentence Violates a Plea Agreement Even Without a Formal Variance Request

Introduction

In United States v. Trotter, the Fifth Circuit vacated a within-Guidelines sentence after concluding that the Government breached its plea agreement by effectively urging an above‑Guidelines sentence at the sentencing hearing, notwithstanding the prosecutor’s express disclaimer that the Government was not seeking a variance. The decision reinforces core principles governing plea agreement enforcement: promises are construed against the Government; subtle or indirect advocacy that undermines a promised sentencing position can constitute a breach; and a defendant can obtain relief on plain‑error review even where the sentence imposed is technically within the Guidelines range.

The case arises from Darell Montrell Trotter’s guilty plea to a fentanyl-distribution conspiracy. Although the indictment alleged a drug “death resulting,” the plea agreement omitted that allegation. Critically, the agreement contained a stipulation that “the defendant shall be sentenced to a term of imprisonment within the applicable sentencing range under the U.S. Sentencing Guidelines,” while acknowledging that the court was not bound by the stipulations. At sentencing, after the probation office and the defense recommended the bottom of the applicable range (135–168 months), the prosecutor delivered an argument that, in substance, urged the court to step outside the Guidelines and consider a higher sentence based on the gravity of the offense and a victim’s death—despite conceding that legal causation for the “death resulting” enhancement could not be shown. The district court imposed 168 months, the top of the range.

On appeal, Trotter (for the first time) argued that the Government’s sentencing remarks breached the plea agreement. Applying plain‑error review, the Fifth Circuit agreed, vacated the sentence, and remanded to allow Trotter to elect either specific performance before a new judge or rescission of the plea.

Summary of the Opinion

The panel majority (Judge Dennis, joined by Chief Judge Richman) held:

The Government breached the plea agreement by affirmatively advocating for a sentence above the Guidelines range the parties had effectively agreed to, even though it did not formally move for a variance or departure.
On plain-error review, the first two prongs (error that is plain) were satisfied. The plea terms are interpreted using contract principles, strictly against the Government as drafter, and the prosecutor’s conduct was inconsistent with the agreement as reasonably understood.
The breach affected Trotter’s substantial rights because there was a reasonable probability that, but for the breach, he would have received a lesser sentence. The record did not affirmatively show the district court would have imposed the same sentence regardless of the breach, and circumstantial indicators suggested the Government’s argument may have influenced the outcome.
The fourth prong—serious effect on fairness, integrity, or public reputation—was also met under a rebuttable presumption that a meaningful breach of a plea agreement satisfies this prong. The Government’s efforts to rebut the presumption failed.
Remedy: Vacatur and remand for Trotter to make a final, counseled election between specific performance before a new judge or rescission of the plea agreement.

Judge Jerry E. Smith dissented, arguing there was no breach, no effect on substantial rights, and that the majority’s approach dilutes plain‑error review and undermines finality where the sentence imposed was within the agreed range.

Analysis

Precedents Cited and How They Shaped the Decision

Puckett v. United States, 556 U.S. 129 (2009): Establishes that unpreserved claims of plea-breach are reviewed for plain error. The majority uses Puckett’s four-prong framework (error; plainness; effect on substantial rights; and whether to correct to protect the fairness, integrity, or reputation of judicial proceedings). Puckett also recognizes that not every breach requires reversal, but it emphasizes the institutional importance of honoring plea promises.
United States v. Hebron, 684 F.3d 554 (5th Cir. 2012): Reinforces that plea agreements are interpreted using contract principles, with ambiguities construed against the Government. The panel relies on Hebron to adopt Trotter’s reasonable understanding that neither party would advocate outside the Guidelines range.
United States v. Scott, 857 F.3d 241 (5th Cir. 2017): Places the burden on the defendant to prove breach by a preponderance of the evidence; that burden was met here on the face of the prosecutor’s argument.
United States v. Williams, 821 F.3d 656 (5th Cir.), reh’g denied, 833 F.3d 449 (2016): Provides the prejudice articulation applied here: a defendant’s substantial rights are affected where there is a reasonable probability of a lower sentence absent the breach, and when there is no indication the district court would have been unmoved by the Government’s position. Also supplies the election-of-remedy framework (specific performance before a new judge or rescission).
United States v. Kirkland, 851 F.3d 499 (5th Cir. 2017): Clarifies the substantial-rights analysis and recognizes a rebuttable presumption that a meaningful Government breach satisfies the fourth prong. The majority leans on Kirkland’s “no indication ... unmoved” standard and its fairness/integrity presumption.
United States v. Malmquist, 92 F.4th 555 (5th Cir. 2024): Emphasizes the inherent unfairness when the Government induces a plea and later fails to honor its promises, supporting the court’s willingness to correct the error under the fourth prong.
United States v. Purser, 747 F.3d 284 (5th Cir. 2014): Addresses “curing” a breach. The panel uses Purser to reject the Government’s attempt to rely on Trotter’s earlier PSR objections as a prior defense breach—because those objections were withdrawn by agreement, any potential breach was cured and could not retroactively excuse the Government’s later breach.
United States v. Hudgens, 4 F.4th 352 (5th Cir. 2021): Cited to show that similar Government arguments have supported upward variances in other cases. The reference underscores that, functionally, the prosecutor’s remarks were the stuff of variance advocacy even if disclaimed formally.
Unpublished Fifth Circuit decisions: United States v. Villareal-Parades, 647 F. App’x 504 (5th Cir. 2016) and United States v. Soza, 2001 WL 360661 (5th Cir. Apr. 3, 2001) illustrate when the court has found no prejudice because the record affirmatively showed the same sentence would have issued regardless of any Government breach. The absence of such a clear statement in Trotter cuts the other way.

Legal Reasoning: Why the Court Found a Breach and Plain Error

The majority begins with contract principles: what would a reasonable defendant understand the Government’s promise to mean? Paragraph 5(g) states that “the defendant shall be sentenced” within the applicable Guidelines range, while acknowledging the court’s independence. Read against the Government, the provision commits both sides to a within-Guidelines sentencing posture, even if the court is not bound to follow it. Trotter’s interpretation—that neither party would advocate outside the range—is accepted, and the Government does not contest it on appeal.

The Government’s conduct crossed that line. Although the prosecutor confirmed there was no formal motion for a departure or variance, the substance of his remarks did three impermissible things:

They implicitly accused Trotter of murder by presenting the victim’s father to urge “a lifetime in prison,” after acknowledging that legal causation for the “death resulting” enhancement could not be met.
They characterized the Guidelines as significantly underrepresenting the seriousness of the conduct and harm, warning against “guideline myopia,” thereby undermining the agreed‑upon range.
They repeatedly directed the court to “take a step back” from the Guidelines, invoking the life maximum and the perspective of “our fellow citizens”—classic variance cues.

On that record, the first two plain-error prongs (error that is clear) are “clearly met.” The key fight, as the Government conceded, concerned prejudice and the fourth prong.

On substantial rights (the third prong), the court applies a practical, commonsense standard: Did the breach create a reasonable probability of a lower sentence absent the breach? The Government’s recommendation is influential; to deny prejudice there must be an “affirmative” indication the judge would have been unmoved. Here there was none. To the contrary:

Probation and the defense both urged the bottom of the range; the Government had agreed to a within-range disposition.
Trotter had no criminal history points—a profile typically consistent with a lower-range sentence.
Yet the court selected the very top of the range after the Government attacked the adequacy of that range. Even if the court did not explicitly reference the prosecutor’s remarks, it “strains credulity” to presume the comments played no role.

That sufficed to establish prejudice. The court expressly distinguishes cases where the district court has stated on the record that it would have imposed the same sentence regardless of the Government’s breach; no such statement exists here.

On the fourth prong, the court applies Kirkland’s rebuttable presumption that a meaningful Government breach implicates the fairness, integrity, or public reputation of judicial proceedings. The Government’s two rebuttal arguments failed:

“Generous plea”: Concessions in the original bargain (dismissed charges, offense-level reductions) do not excuse later breaches—especially where the Government knew the facts when it struck the deal.
Defendant’s supposed prior breach: Any issue was cured when Trotter withdrew his PSR objections with the Government’s agreement; the prosecution cannot invoke alleged breaches retroactively to justify its own later breach. If the Government believed the defendant breached, it needed to act at the time.

The remedy follows Fifth Circuit practice: allow the defendant to elect between specific performance (resentencing before a different judge, with the Government honoring its promise) or rescission (withdraw the plea).

The Dissent’s Countervailing View

Judge Smith would affirm. He stresses that:

The Government explicitly told the court it was not seeking a departure or variance.
The district judge did not reference the prosecutor’s remarks, and the sentence imposed—top-of-range—was exactly what the Government recommended in its sentencing memorandum and within what the defendant agreed to receive.
On plain-error review, the defendant bears the burden at each prong. Here, the dissent sees neither breach nor prejudice and views the majority’s approach as allowing defendants to unwind plea deals post hoc, undermining the integrity and finality of plea bargaining.

What This Decision Adds to Fifth Circuit Law

It crystallizes that a Government disclaimer (“we are not moving for a variance”) does not immunize advocacy that, in substance, urges the court to exceed the Guidelines range promised in a plea agreement. Substance controls over labels.
It confirms that prejudice can be shown even when the ultimate sentence remains within the range, by focusing on the difference between a top‑ and bottom‑of‑range outcome and the likelihood that the Government’s breach “may have influenced” the judge.
It reinforces a robust fourth‑prong presumption in favor of relief for meaningful Government breaches, and it limits the Government’s ability to rely on alleged defendant breaches post hoc if those were cured during sentencing proceedings.

Impact

Trotter will reverberate across federal sentencing practice in at least four ways:

Prosecutorial advocacy at sentencing: The opinion signals that prosecutors must scrupulously honor the sentencing posture promised in the plea. Arguments that the Guidelines “undervalue” the offense, invitations to “step back” from the Guidelines, emphasis on statutory maxima, or victim-impact framing that effectively alleges conduct excluded from the plea can breach the agreement—even without a formal variance motion.
Plea drafting and boilerplate: Expect more explicit language in plea agreements about what the Government may and may not argue. If the Government wants freedom to argue for a variance, it must say so plainly; if it promises a within-Guidelines sentence, it should not undercut that range in allocution or witness selection.
Defense preservation and remedies: Defense counsel should object contemporaneously to perceived breaches to avoid plain‑error constraints and should request appropriate remedies (e.g., specific performance before a new judge). Trotter shows that even absent an objection, relief is possible—but objections make success far more likely and clearer.
District court best practices: Where a plea‑breach issue lurks, district judges can reduce remand risk by stating on the record that their sentence would be the same irrespective of any Government recommendation, and by clarifying whether they were unmoved by contested argument. Judges should also scrutinize whether victim-impact testimony is being used to smuggle in facts or theories inconsistent with the plea’s scope.

Beyond the litigants, Trotter underscores the institutional value of plea bargaining. The opinion’s tone and citations (e.g., Kirkland and Malmquist) reaffirm that honoring the Government’s promises is essential to the perceived fairness and reliability of the system—an emphasis likely to guide future plain‑error analyses involving Government breaches.

Complex Concepts Simplified

Plea agreement breach: A plea agreement is a contract. The Government must do what it promised. If it promised to support a within-Guidelines sentence, it may not argue for a sentence outside the range or undermine the range’s adequacy.
Departure vs. variance: A “departure” is a Guidelines-based adjustment; a “variance” is a sentence outside the Guidelines based on the statutory factors in 18 U.S.C. § 3553(a). The label matters less than the substance—advocacy that urges a sentence beyond the range functions like a variance request.
Plain-error review (unpreserved claims): The appellant must show (1) error; (2) that is clear; (3) that affected substantial rights (a reasonable probability of a different outcome); and (4) that failure to correct would seriously affect the fairness, integrity, or public reputation of the proceedings.
Substantial rights in sentencing: Even if the sentence remains within the Guidelines, the difference between the bottom and top of the range can be substantial. If the Government’s breach might have influenced the move to a higher point in the range, the third prong can be satisfied.
“Death resulting” enhancement: In drug cases, a distribution offense that “results in death” can trigger a 20‑year mandatory minimum and a higher statutory maximum. If legal causation cannot be proven, the Government cannot seek that enhancement—but it also cannot use sentencing advocacy to effectively resurrect it when it promised a within‑Guidelines sentence without the enhancement.
Specific performance vs. rescission: If the Government breaches, the defendant may choose to enforce the bargain (typically resentencing before a different judge with the Government fulfilling its promise) or unwind the plea (withdraw the guilty plea).
Curing a breach: If a party’s conduct arguably breaches the plea, it may be “cured” by withdrawing the offending position before the court acts. Once cured, the other side cannot later rely on that past misstep to justify its own breach.

Conclusion

United States v. Trotter is a pointed reminder that the Government’s duty to honor plea promises extends to the practical realities of sentencing advocacy. A prosecutor cannot evade a plea commitment by disclaiming a formal variance while urging the court to “step back” from the Guidelines, spotlighting statutory maxima, or invoking conduct inconsistent with the negotiated charge. Under the Fifth Circuit’s plain‑error jurisprudence, such a breach can warrant relief even when the resulting sentence is within the Guidelines range, especially where the record lacks an affirmative statement that the same sentence would have been imposed regardless.

The decision deepens the Fifth Circuit’s emphasis on the integrity of plea bargaining and offers concrete guidance for prosecutors, defense counsel, and district judges alike. Its key takeaways: substance trumps form in assessing a breach; prejudice may be found from a shift within the range; and meaningful Government breaches presumptively implicate the fairness and reputation of the judicial process. On remand, Trotter now holds the election that Fifth Circuit precedent affords—specific performance before a new judge or rescission—illustrating the remedial teeth the court is prepared to deploy to ensure that the Government keeps its word.