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The government’s advocacy of a higher sentence for a repeat offender breached the terms of its plea agreement with the defendant, a federal appeals court has ruled. The 2nd U.S. Circuit Court of Appeals ordered that defendant Troy Vaval, who was sentenced to serve 14 years in prison by Eastern District of New York Judge Carol B. Amon, must be resentenced before a different judge because of the government’s breach. In United States v. Vaval, 04-0121-cr, the circuit said in an opinion written by Judge Ralph Winter that “the government’s conduct in this case went beyond a few ill-chosen words” when it advocated a higher sentence before Amon. Vaval, also known as “Justice” Vaval, was charged with participating in a scheme to rob and carjack an illegal gun buyer who was actually a government informant. After negotiations with the government, Vaval agreed to plead guilty to a charge of robbery of federal property with a dangerous weapon. In the plea agreement, the government said it would drop the remaining counts in the indictment. It also agreed that, “based upon the information now known to” the U.S. Attorney’s Office, it would “take no position concerning where within the Guidelines range determined by the Court the sentence should fall” and “make no motion for an upward departure.” The Probation Department’s presentence report recommended an offense level and a criminal history category that placed Vaval in a Guidelines range of 135 months to 168 months. At sentencing, the government said the report had wrongly given Vaval a two-level, rather than a three-level, adjustment for his role in the scheme. Vaval objected, saying the government’s statement violated its promise in the plea agreement to refrain from advocacy. After Amon set the range at 135 to 168 months, and Vaval apologized for his criminal conduct, the prosecutor stated that he found “this defendant’s criminal history appalling” and went on to describe him as a “ring leader” who punched the victim in the face and “orchestrated three people who were armed with guns.” When Vaval objected, the prosecutor responded, “We don’t make a promise that we will be silent at sentencing,” and later added, “I think, technically, I could make an upward departure which I am not.” Amon said she recognized Vaval’s problems with the government’s statements, but found that Vaval was not prejudiced. She then went on to sentence Vaval to the high end of the range. On Vaval’s appeal, Winter noted that the government acknowledged at sentencing it could not move for an upward departure or take a position on the appropriate sentence within the guideline range. “Such statements do not, however, insulate the government against a finding of breach if in fact what was said constituted an argument about where within the range to sentence appellant and/or whether to upwardly depart,” Winter said. All the relevant facts had been “fully canvassed” during the sentencing, in the presentence report and at the trial of Vaval’s co-defendants before the same judge, he said. “Nevertheless, just before sentencing, the government felt the need to provide the vivid detail quoted earlier,” the judge said. “It is difficult to draw a principled distinction between the government actually moving for an upward departure and stating that it ‘technically’ could move for such a departure and then adding arguments that would support such a departure,” Winter said. DISTINCT FROM ‘RIERA’ He said that in United States v. Riera, 298 F.3d 128 (2d Cir. 2002), the government signed a plea agreement promising not to advocate for an upward departure. But the government in Riera was still allowed, he said, “to respond to inquiries from the court by stating relevant facts and law” and to opine “whether the court had discretion to depart.” The Riera court said that a letter sent by the government in response to a court inquiry “contained a few ill-advised descriptive words that might have suggested that the government thought that the court should upwardly depart,” which meant that the government “came very close to breaching the agreement.” Vaval’s situation was very different, Winter said. “The distinction between this case and Riera is in the severity and context of the government’s breach,” he said. Vaval’s request that he be allowed to withdraw his guilty plea, however, was denied. Vaval, Winter said, “has no valid claim to relief that does more than remedy the designated breach,” and that remedy is resentencing before a different judge. Judges Sonia Sotomayor and Barrington D. Parker Jr. joined in the opinion. John A. Cirando, Lisa M. Cirando, Susan R. Rider, and Michelle A. Olawoye of Syracuse, N.Y., represented the defendant. Assistant U.S. Attorneys Colleen Kavanaugh and Jo Ann M. Navickas represented the government.

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