"Eighth Circuit: Government Breached Plea Agreement by Endorsing PSR’s Calculation of Higher Base Offense Level Than Plea Agreement, Curing Breach Not Recognized in Circuit"
by David M. Reutter
The U.S. Court of Appeals for the Eighth Circuit held that the Government breached a plea agreement because the Government endorsed a base offense level in the Presentence Investigative Report (“PSR”) that was higher than the base offense level in the plea agreement.
The Court’s opinion was issued in an appeal by Carvon Brown. He pleaded guilty in the U.S. District Court for the Western District of Missouri to knowingly possessing a stolen firearm. Under a plea agreement, Brown and the Government agreed that the “applicable Guidelines section for the offense … is U.S.S.G. § 2K2.1(a)(7),” with “a base offense level of 12.”
In contrast, the PSR calculated a base offense level of 20. The disparity was a result of the PSR’s conclusion that Brown was a prohibited person whose offense involved possessing a semiautomatic firearm capable of utilizing a large-capacity magazine. See § 2K2.1(a)(4)(B). Brown objected to that conclusion. The Government did not; instead, it affirmed that conclusion by stating in a sentencing memorandum that base offense level of 20 was “appropriate.”
Two sentencing hearings ensued. At the first, the Brown again objected to the PSR’s conclusion, noting it was higher than what was agreed to in the plea agreement. Although the Government acknowledged that the plea agreement contained a lower calculation, it nevertheless stated that the PSR’s calculation was correct. Furthermore, the Government made “a proffer” that the gun contained a 17-round magazine and fit the applicable statutory definition in § 2K2.1(a)(4)(B), but the Government advised the court that it was not ready to prove the statute’s applicability, which resulted in the hearing being postponed.
At the second hearing, after a witness established the gun had a large-capacity magazine, the Government agreed with the PSR’s calculation. It, however, refused to offer a sentencing recommendation, telling the court: “I would ask you to stick to the plea agreement…. [D]efense counsel … believe[s] it may possibly be a breach of the plea agreement on my part if I argue for a the higher guideline sentence…. So because of that, Judge, I told [defense counsel] that I will stand silent when it comes to a recommendation, because he believes it possibly may be a breach of the plea agreement. I don’t think it would be….” Defense counsel argued that the Government had breached the plea agreement by filing its sentencing memorandum endorsing the PSR’s calculations.
The district court overruled Brown’s objection, adopted the PSR’s calculation, and sentenced Brown to 72 months’ imprisonment.
On appeal, Brown argued the Government breached the plea agreement. The Government countered by arguing Brown waived his right to appeal in the plea agreement.
The Court rejected the Government’s position, stating that if the Government breaches a plea agreement, an appeal waiver doesn’t bar the defendant’s appeal. United States v. Pierre, 912 F.3d 1137 (8th Cir. 2019).
The Government then argued that the Court is limited to plain-error review because Brown forfeited this argument by failing to object. United States v. Campbell, 764 F.3d 874 (8th Cir. 2014). It claimed that Brown’s objection was insufficient to preserve the issue because he didn’t specifically request relief.
Once again, the Court rejected the Government’s position. First, the Court explained that only in dicta had it ever stated that without “an objection and a proper request for relief, the matter is waived.” United States v. Allmon, 500 F.3d 800 (8th Cir. 2007). But it is not bound by dicta. McIntyre v. Reliance Standard Life Ins. Co., 972 F.3d 955 (8th Cir. 2020). Next, the Court declared that “we have never held that an objection must be accompanied by a request for relief to preserve an issue for appellate review.” Finally, the Court reiterated to “preserve an error for appellate review, an objection must be timely and must clearly state the grounds for the objection.” United States v. Pirani, 406 F.3d 543 (8th Cir. 2005).
In the present case, Brown explicitly argued that the Government had breached the plea agreement. The Court concluded that this “was sufficient to apprise the district court of” his objection and the grounds upon which it was based. Thus, the Court reviewed Brown’s claim de novo. See United States v. E.V., 500 F.3d 747 (8th Cir. 2007).
The Court began its analysis by quoting United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009): “When the offense level is part of the inducement or consideration for pleading guilty, the government breaches a plea agreement by advocating a higher offense level than that specified in the agreement.” Based on facts very similar to Brown’s case, applying plain-error review (a more demanding standard than the de novo review in the present case) the Lovelace Court ruled that the Government breached the plea agreement.
Likewise, the Court ruled that the Government breached its plea agreement with Brown. By stating that the PSR’s base offense level of 20 was “appropriate,” the Government argued “for a different applicable guidelines section and higher base offense level than it had agreed to, thus breaching the plea agreement,” the Court stated.
The Government then asserted that it cured any breach by telling the sentencing court to “stick to the plea agreement.” The Court handed the Government its final defeat in the case, noting that “the Government cites no case where we have held that it may cure the breach of a plea agreement, and we are unaware of any.” Even assuming arguendo that curing were permissible in the Eighth Circuit, the Court chided that the Government’s conduct in the case was a “far cry from an ‘unequivocal retraction’” required in those circuits that do recognize a cure is possible. See United States v. Ligon, 937 F.3d 714 (6th Cir. 2019); United States v. Munoz, 408 F.3d 222 (5th Cir. 2005).
Accordingly, the Court vacated Brown’s sentence and remanded for resentencing before a different judge. See: United States v. Brown, 5 F.4th 913 (8th Cir. 2021).
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