Lawletter Vol. 48 No. 4
CRIMINAL LAW: The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement
Suzanne Bailey, Senior Attorney
A recent decision from the U.S. Court of Appeals for the Fourth Circuit, United States v. Toebbe, 85 F.4th 190 (4th Cir. 2023), illustrates both the binding nature of plea agreements entered into pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the ultimate authority of the judge in sentencing. Diana Toebbe, a high school humanities teacher with a Ph.D., and her husband, Jonathan Toebbe, a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion program and possessing both an active Top Secret security clearance through the Department of Defense and an active “Q clearance” through the Department of Energy, decided to supplement their income by selling Restricted Data of the U.S. Navy relating to Virginia-class-nuclear-powered submarines to a foreign government. Unfortunately for the Toebbes, the foreign government alerted the FBI to the couple’s proposed scheme, and all of the “dead drops” of information Jonathan thought he was making to the foreign government—with Diana acting as look-out—were actually left for an FBI undercover investigation team. Both Toebbes were indicted and charged with “one count of conspiracy to communicate Restricted Data, in violation of 42 U.S.C. § 2274(a), and two counts of aiding and abetting the communication of Restricted Data, in violation of § 2274(a) and 18 U.S.C. § 2," 2023 U.S. App. LEXIS 28366, at *7-8, and both faced a potential sentence of life in prison.
Diana entered into a written plea agreement under Rule 11(c)(1)(C) agreeing to plead guilty to the conspiracy charge in exchange for a sentence of up to 36 months. Under the terms of the agreement, she could withdraw her plea of guilty if the court did not accept the sentence. She also waived her right to appeal, except for ineffective assistance of counsel or prosecutorial misconduct. The district court rejected the sentence, finding it was too lenient given the harm caused to the Navy, its service members, the United States, and the world, and pointing out that even with a 3-level reduction for acceptance of responsibility, the Sentencing Guidelines’ range was for imprisonment for a term of between 151 and 188 months. Therefore, Diana withdrew her plea as permitted by the plea agreement and renegotiated another plea agreement with the Government.
The second plea agreement also called for Diana to plead guilty to conspiracy. However, rather than proffer a specific sentence, the new agreement required the court to impose a sentence of not more than the low end of the applicable Guidelines’ range, as calculated by the court. The Government agreed to request a 3-level downward departure from the Guidelines’ range for cooperation and to recommend a 3-level reduction for timely acceptance of responsibility. If the court agreed with the Government’s recommendations, the Guidelines’ sentence would fall within a range of 108 to 135 months in prison. Again, Diana was bound by the agreement, but she could withdraw her plea if the court would not agree to impose a sentence at the low end of the sentencing range. Again, she waived her appeal rights.
As promised, the Government made a motion for a 3-level downward departure for cooperation, but the court denied the motion following a hearing, concluding that Diana generally provided only information already available to the Government. In the course of preparing the presentence investigation report, the probation officer learned from jail staff that one and two months prior to her first plea of guilty, Diana had attempted to send two letters to Jonathan—which were intercepted by jail staff—in which she attempted to induce him to tell the authorities that she was ignorant of the scheme so that she would receive a lesser sentence and be able to care for their children. The probation officer interviewed Jonathan, who confirmed that prior to their arrests, he and Diana had concocted a cover story in order to shield her from the consequences of the conspiracy. Accordingly, while recommending a 3-level downward adjustment for timely acceptance of responsibility, the probation officer also recommended a 2-level upward adjustment for obstruction of justice. The district court agreed with the probation officer’s recommendations and, after rejecting Diana’s argument—made with the full support of the Government—that her sentence should fall in a range of 3 to 4.9 years, the court sentenced Diana to 262 months’ imprisonment and Jonathan to 232 months’ imprisonment. Diana’s sentence was at the low end of the Sentencing Range, based on the court’s calculations.
In a lengthy opinion, the appeals court dismissed the appeal on the ground that Diana had waived her right to appeal in the plea agreement. Diana did not argue that the Government engaged in prosecutorial misconduct or that her counsel was ineffective or that the district court miscalculated the Guidelines’ range. The Fourth Circuit rejected Diana’s argument that based on her negotiations with the Government regarding a three-year cap on her sentence, she could not possibly have anticipated a sentence of over 21 years and the sentence was attributable to bias by the court. The appellate court pointed out that it was not inappropriate for the court to conclude that Diana was “driving the bus,” based on the two letters she attempted to send her husband. 2023 U.S. App. LEXIS 28366, at *33. While the Government was compelled by the plea agreement to ask for a 3-level reduction for acceptance of responsibility, the district court was not required to grant the request. Moreover, even if Diana had not waived her right to appeal the sentence, the appeals court would not find that the sentence was disproportionate to her offense. Finally, the Fourth Circuit rejected the notion that the Government violated the plea agreement by arguing in opposition to the appeal. The Government’s obligations under the agreement addressed matters prior to sentencing; indeed, the plea agreement specifically provided that the Government was authorized to advance in support of the sentence on appeal. In the end, although more than seven times the length of the sentence Diana was hoping to receive, she had no right to challenge the sentence on appeal, because the Government complied with the plea agreement and the court imposed a sentence permitted by the plea agreement.