US v. Hernandez-Castro, No. 14-10497 (2-25-16)(Melloy with Ikuta and Hurwitz). This is a "breach of plea agreement" case. The 9th held that, under plain error, there is a difference between the government and defendant agreeing to a four level fast track departure -- and the government agreeing to recommend, and then not recommending. The case here involved a drug "fast track" where there were stipulations to a sentencing range (57 to 71) and use of a minor enhancement. At sentencing, the court did not enhance for a minor, but only gave a two level departure for fast track. The court also gave a two level further variance based on guideline drug amendments. The 9th held that the plea was not breached by the government's failure to say "Hey, we stipulated to a four level departure" because there was no affirmative agreement to so recommend.
This distinction seems pretty fine. However, the sentence was below what was originally contemplated (57 to 71), and so there was arguably no "harm" in expectations.
The take away: make sure the plea states: the government recommends.
The decision is here: