U.S. v. Whitney, No. 10-10118 (3-7-12) (Reinhardt with B. Fletcher and Tashima).

A deal was struck between the government and the defendant. At sentencing, the prosecutor breached explicitly and implicitly some provisions. Specifically, the prosecutor disclosed information in a debriefing that was agreed to remain confidential; and an argument about criminal history supported an upward departure. Here, in fraud case, the guideline range was 41 to 51 months. The court departed upward to 87 months, after finding an organizer adjustment, on the basis of under representation of criminal history. The 9th held that plea agreements are contracts, and the breaking of an agreed term is a violation. The 9th found that indeed promises made were broken. Moreover, the court even erred in a guideline determination, finding no evidence to support an adjustment for the defendant being an organizer. The case is remanded for resentencing before a new judge.