I think those interested in this topic should read the Second Circuit's opinion. Suffice it to say that the defendant's cooperation and the 5K.1 request often come after the plea agreement (otherwise the parameters of the 5K.1 factors would be set forth in the plea agreement )-- and thus adds an element for a more defendant-friendly sentence than would have been contemplated by the plea agreement. Furthermore, and in any event, the court has to determine the sentence not just on the factors enumerated in the plea agreement but based on all of the Section 3553(a) factors in context for the defendant before the court, whether or not they are part of the plea agreement. For the judge to behave in the way he did is just bizarre.
Despite the waiver of right to appeal, the Second Circuit reversed the sentence and remanded for new sentencing by a different judge not hampered by the bizarre sentencing notion articulated by the original sentencing judge. The Court summarized:
Applying these principles, we hold that vacatur is required because the district court: (1) improperly "relied" on the Agreement to the exclusion of the 5K1.1 letter and the § 3553(a) factors; and (2) misread the Agreement as manifesting Woltmann's enforceable concession that any sentence at or below 27 months obviated the need to consider the 5K1.1 letter and the § 3553(a) factors. In so doing, the district court failed to give effect to the parties' expectations and deprived Woltmann of the benefit that he (and the government) agreed he would receive from signing the Agreement (i.e., a weighing of the 5K1.1 letter and the § 3553 factors). At the same time, the court also "abdicated" its judicial responsibility in the way posited by Gomez-Perez, 215 F.3d at 319.Surprisingly, the Second Circuit was not particularly polite in its expressions of disappointment with the original sentencing judge. \