In U.S. v. Munoz, Munoz plead guilty to wire fraud in connection with a Ponzi scheme he had been operating. In the plea agreement, the government essentially agreed to the guidelines calculation. There was no reference to a “vulnerable victim” enhancement. The presetence report recommended such an enhancement, and, at sentencing, the court asked the government its position. The Assistant U.S. Attorney stated that he did not think the plea agreement committed him on this, and agreed with the enhancement. Munoz objected to a calculation not reflected in the plea agreement.
On appeal, Munoz argued that the government had breached its plea agreement. The Fifth Circuit held this was not preserved below (apparently, the objection based that the plea agreement should be followed did not suffice) and carried out plain error review. Review of whether a plea agreement is breached is de novo. The court held this was a breach and remanded for resentencing before a different judge.