Government Breaches Plea Agreement by Advocating Restitution Contrary to “Restitution: N/A”; Restitution Vacated and Remand to a Different Judge

Introduction

In United States v. Apolinaris (2d Cir. Jan. 6, 2026) (summary order), the Second Circuit confronted a recurring plea-bargaining problem: what happens when the parties’ plea agreement states “Restitution: N/A”, but the Probation Office later recommends restitution and the district court requests briefing on the court’s statutory authority to impose it.

Defendant-Appellant Caleb Apolinaris pleaded guilty in the Eastern District of New York to distribution of, and possession with intent to distribute, fentanyl under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The underlying conduct involved a sale of drugs to a victim who later died; the victim’s mother reported substantial losses, including funeral expenses, lost income, and medical expenses. Although the plea agreement stated “Restitution: N/A,” the PSR advised that restitution could be ordered under the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, and quantified claimed losses.

The central appellate issue was not the outer limits of VWPA restitution, but contract compliance: whether the government breached the plea agreement by advocating in favor of restitution after agreeing restitution was “N/A.”

Summary of the Opinion

The Second Circuit held that the government breached the plea agreement when it argued for the imposition of restitution despite the agreement’s “Restitution: N/A” term. The court explained that, if the district court seeks input about its authority to order restitution, the government may answer the court’s legal questions, but must do so while making clear it is not advocating restitution in light of its plea promise.

The court therefore vacated the restitution award and remanded for the limited purpose of determining whether restitution is warranted. Consistent with Second Circuit practice when the government breaches a plea agreement, it further directed that proceedings occur before a different district judge, emphasizing this remedy implied no criticism of the original sentencing judge.

Analysis

Precedents Cited

The panel anchored its breach analysis and remedy in three Second Circuit cases addressing the government’s obligations when a plea agreement limits (or precludes) certain advocacy at sentencing:

United States v. Riera, 298 F.3d 128, 134-135 (2d Cir. 2002)
Riera stands for the principle that the government must honor the substance of its plea promises at sentencing. Even when responding to a court’s inquiry, the government must not use the occasion as a backdoor to urge a result it agreed not to pursue. In Apolinaris, the Second Circuit invoked Riera to identify the “proper course”: answer the court’s authority question while expressly reaffirming that the government is not seeking restitution because the plea agreement forecloses that advocacy.
United States v. Goodman, 165 F.3d 169, 173 (2d Cir. 1999)
Goodman reflects the Second Circuit’s strict approach to enforcing plea agreements as contracts with heightened fairness concerns. Prosecutors are held to meticulous fidelity because the defendant’s guilty plea is typically induced by bargained-for commitments. In Apolinaris, this principle supports treating “Restitution: N/A” as a meaningful restraint on the government’s sentencing position—one the government cannot disregard when restitution becomes salient later.
United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)
Lawlor supplies both (1) the same core breach doctrine—prosecutors must not undermine plea terms through sentencing advocacy—and (2) the standard remedy upon breach: vacatur and remand, often with reassignment to a different judge to ensure the defendant receives the benefit of the bargain without any residual taint from the breach. The panel in Apolinaris cited Lawlor for both the vacatur/remand framework and the reassignment directive, while reiterating that reassignment is not a rebuke of the district judge.

Legal Reasoning

1) The plea agreement term “Restitution: N/A” constrained the government’s sentencing advocacy

The opinion treats the plea agreement as a binding bargain: the defendant pleads guilty, and the government receives the certainty and efficiency of that plea, in exchange for the government’s adherence to specified terms. Here, one of those terms was explicit: “Restitution: N/A.”

While the PSR later asserted restitution could be imposed under the VWPA (and the court sought briefing), the Second Circuit focused on what the government promised—not what the court might independently be authorized to do. The government’s duty was to avoid advocacy inconsistent with its agreement.

2) Responding to the court’s request for briefing did not excuse the breach

A key nuance in the Second Circuit’s reasoning is that courts can request assistance on legal authority without authorizing a party to abandon a plea commitment. The panel drew a careful line:

Permissible: the government explains the legal framework (e.g., whether the VWPA authorizes funeral-cost restitution for a death resulting from the offense).
Impermissible: the government uses its response to advocate that restitution be ordered, where the plea agreement represented restitution as “N/A.”

Under this approach, the government’s advocacy—first supporting a broad restitution request, and later requesting $32,209 in funeral expenses—crossed the line because it sought the imposition of restitution rather than neutrally assisting the court while standing down from a request it had bargained away.

3) Remedy: vacatur of restitution and remand to a different judge

The court ordered a remedy designed to restore the defendant’s benefit of the bargain. It vacated the restitution award and remanded for a limited determination whether restitution is warranted, while requiring resentencing proceedings before a different judge. The reassignment remedy reflects the Second Circuit’s institutional concern that even well-intentioned judicial decision-making can be influenced by exposure to arguments that should not have been made under the plea agreement; reassignment helps ensure a clean implementation of the bargain.

Impact

Plea drafting and performance: The decision underscores that restitution clauses—particularly categorical ones like “N/A”—are not boilerplate. They can foreclose prosecutorial sentencing advocacy even when later developments (PSR recommendations, victim submissions, judicial questions) make restitution a live issue.
Government’s role when the court asks for briefing: The opinion clarifies a practical script: the government may assist on statutory authority, but must explicitly disavow any request inconsistent with the plea agreement. This is especially important in restitution contexts, where the court may have independent authority to order restitution and may request adversarial briefing.
Restitution litigation in drug-death cases: Although the ultimate VWPA scope question narrowed here (the government conceded the VWPA did not cover lost income and medical expenses), the case signals that restitution disputes will be filtered through plea-agreement constraints if the parties have negotiated them—even in emotionally and financially significant death-resulting cases.
Remedial consequences for breach: Reassignment to a different judge remains a real and predictable consequence when the government breaches, reinforcing strong incentives for prosecutorial compliance.

Complex Concepts Simplified

“Restitution”: Money a defendant may be ordered to pay to compensate for certain losses caused by the offense. Unlike a fine (paid to the government), restitution is paid to victims (as defined by statute).
VWPA (18 U.S.C. § 3663): A statute authorizing (often discretionary) restitution for certain offenses. In death cases, it expressly contemplates restitution for funeral and related services. Whether other family losses are covered depends on statutory definitions and causation limits.
“Victim” under the VWPA: The statute limits restitution to persons “directly and proximately harmed.” This limitation often narrows who can recover and what categories of losses qualify.
Plea agreement “breach”: Because plea agreements are treated like contracts (with special fairness protections for defendants), the government violates the agreement if it takes a sentencing position inconsistent with what it promised—such as advocating restitution after agreeing it is “N/A.”
“Remand for resentencing before a different judge”: An appellate remedy used to ensure the defendant receives the benefit of the plea bargain without the original proceeding’s improper advocacy influencing the outcome, even unintentionally.

Conclusion

United States v. Apolinaris reinforces a strict-performance rule in plea bargaining: when a plea agreement states “Restitution: N/A,” the government may not later advocate that restitution be imposed, even if a PSR recommends it or the court requests briefing. The government can assist the court on legal authority only while making clear it is not seeking restitution in light of its bargain. The Second Circuit’s chosen remedy—vacatur of restitution and remand with reassignment—highlights both the seriousness with which it treats plea breaches and the structural steps it will take to protect the integrity of negotiated guilty pleas.