United States v. Adrian Palomino

MEMORANDUM

Adrian Andrew Palomino appeals his sentence imposed following a guilty plea to one count of attempted bank robbery, in violation of 18 U.S.C. § 2113 (a). Palomino argues that the government breached the terms of the parties’ written plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 8742 (a). We vacate the sentence and remand for resentencing.

In the plea agreement, the government promised to recommend a sentence no higher than the low-end of the guidelines range. At the sentencing hearing, after a victim spoke of the crime’s impact on him, the district court articulated its guidelines calculations and a number of aggravating as well as mitigating factors that would be relevant in the court’s sentencing decision. The court then noted that, in its view, the sentence would “obviously” be within the guidelines range, and the only issue remaining would be “where on this guideline range that sentence should be.” Next, the court asked for the prosecutor’s views on “the appropriate sentence here.” In response, the prosecutor focused exclusively on aggravating factors — Palomino’s “substantial criminal history,” the failure of prior convictions to…