What is the test for a judge to depart from the federal criminal sentencing guidelines when a defendant has pleaded guilty to a charge that has been dropped pursuant to a plea agreement?

To reach any other result would undermine the integrity of the plea bargaining system. The great majority of federal criminal cases are resolved by plea agreements pursuant to which the defendant pleads guilty to some counts in exchange for the government's agreement to dismiss or not to charge other counts. That system is a crucial tool in preventing the flood of criminal cases now overwhelming courts from completely inundating them. To allow judges to depart from the Guidelines on the basis of counts that have been dropped pursuant to plea agreements would severely undermine the incentive of defendants to enter into plea bargains. As we stated in United States v. Enriquez-Munoz, 906 F.2d 1356, 1359 (9th Cir.1990), "Were the plea bargaining process to lose its effectiveness as a result of judges' ignoring the benefits of the plea bargain to which defendants are entitled, the consequences for both the criminal and civil justice system might well be disastrous."

The government nonetheless argues that departure for uncharged offenses is justified under U.S.S.G. 1B1.4, which provides: