United States v. Todd E. Fisch

Appellant Todd Fisch (Fisch) appeals the district court’s judgment and sentence following his plea of guilty to charges of fraud and conspiring to defraud the United States. Fisch contends that the government breached their plea agreement. We agree and, accordingly, vacate the sentence and remand to the district court for resen-tencing.

The plea agreement between Fisch and the government obligated the government to inform the sentencing court of all Fisch’s cooperation with authorities. At sentencing, Fisch’s attorney referred generally to several acts of cooperation by Fisch. The prosecutor did not directly respond to this recitation, but acknowledged that Fisch “ha[d] been cooperating in helping prosecute the coconspirators....”

We review de novo Fisch’s claim that the government breached the plea agreement at sentencing. See United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984). The Supreme Court and this court have unequivocally held that prosecuting attorneys must keep promises made in plea agreements. Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495, 498-99 , 30 L.Ed.2d 427 (1971); Travis, 735 F.2d at 1132 ; United States v. Garcia, 519 F.2d 1343, 1345 (9th…