Diana Toebbe and her husband were arrested and charged with espionage-related crimes–specifically, conspiracy to communicate, transmit, or disclose Restricted Data of the U.S. Navy (relating to Virginia-class nuclear-powered submarines) with the intent to injure the United States, in violation of 42 U.S.C. Section 2274(a). The plot was foiled when the foreign government solicited by the Toebbes tipped off the U.S. Government. Diana's original binding plea agreement, providing for a sentence of not more than 36 months, was rejected by the U.S. District Court as "strikingly deficient." The government and Toebbe returned with a new plea agreement, which contained the standard federal waiver of the right to appeal (that is, a waiver for everything other than prosecutorial misconduct or ineffective assistance of counsel) and bound the court to sentence Toebbe to the lowest possible Guideline sentence within the Guidelines Range determined by the sentencing court.  All of the other stipulations in the second plea agreement were recommendations only, which did not bind the court. The government recommended a Guidelines range of 108 to 135 months. The court accepted the plea agreement but rejected some of the parties' recommendations, including Toebbe's status as a minor participant and a three-point downward adjustment for acceptance of responsibility. The court also rejected the government's motion for a three-level downward departure for substantial assistance and assessed two points for obstruction of justice (based on two coaching letters that Toebbe unsuccessfully attempted to send to her husband). The result? A Guidelines Range of 262-327 months. The sentencing court, abiding by the binding terms of the plea agreement, then sentenced Toebbe to 262 months. This was longer than the sentence received by her husband, the person who stole the Restricted Data in the first place. Toebbe made various arguments as to why the sentence was invalid, all to no avail. It could happen to any of us. Binding plea deals to a set specific maximum sentence, like the one contained in the original plea agreement, are still a rarity in most federal jurisdictions. Reading the warning signs when the judge emphatically rejected the original deal, the parties came back with a substantially harsher sentencing recommendation, but one that was a recommendation only, based on predicate recommendations that the court also was not bound to accept. And there is nothing that anybody can do about it, given the standard appellate waiver demanded by the government in most federal plea deals. Here is the opinion in U.S. v. Diana Toebbe (4th Cir. 2023).

(wisenberg)