Sometimes after a difficult negotiation, defense counsel succeeds in convincing the government to accept certain concessions in a plea agreement, only to see those concessions have less than the hoped-for impact on the court at sentencing. Although the form of plea agreement commonly used in the New York federal courts reserves latitude for sentencing advocacy, the issue may arise whether a prosecutor’s arguments go so far in communicating that the court should impose a more severe sentence as to deny the defendant the benefit of his or her plea bargain. United States v. Wright, an appeal to the U.S. Court of Appeals for the Second Circuit brought by a co-defendant in the well-publicized fraud prosecution of former sports radio personality Craig Carton, presents the question whether, though purporting to accept the terms of a plea agreement, a prosecutor’s advocacy may cross the line into a breach of that agreement.

Wright’s recent withdrawal of this well-presented appeal, however, leaves further development of this important area of criminal law to another day. The facts of Wright nevertheless provide a useful case study and should sound a note of caution to prosecutors.

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