DOJ-OGR-00021831.pdf

Case 22-1426, Document 117, 11/01/2024, 3636586, Page7 of 51 provisions against the government, which drafted the agreement and enjoys unequal bargaining power in the sentencing process. The Court should overrule Annabi because it is an outlier and incompatible with "fairness in securing agreement between an accused and a prosecutor." See Santobello v. New York, 404 U.S. 257, 261 (1971). Alternatively, the Court should limit Annabi as follows: Annabi should not apply (1) to plea agreements from other circuits that do not have such a rule; (2) to offenses based on the same conduct that was the subject of a non-prosecution or plea agreement; (3) where there are "affirmative indications" that the defendant reasonably understood the agreement to bind other districts; and (4) without discovery and an evidentiary hearing. Here, Annabi was applied to a plea that was negotiated and executed in the Eleventh Circuit (a circuit that does not follow Annabi); to an offense based on the same conduct that the "United States" had agreed not to prosecute; despite affirmative appearances of intent to bind other districts; and without discovery and a hearing. 2 DOJ-OGR-00021831