PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5615

JAMES MCQUEEN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-94-291)

Argued: December 6, 1996

Decided: March 6, 1997

Before RUSSELL and MOTZ, Circuit Judges, and MICHAEL,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

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Vacated and remanded by published opinion. Judge Russell wrote the
opinion, in which Judge Motz and Senior Judge Michael joined.

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COUNSEL

ARGUED: Michael Smith Scofield, LAW OFFICES OF MICHAEL
SCOFIELD, Charlotte, North Carolina, for Appellant. John Michael
Barton, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: John J. Cacheris, LAW OFFICES OF
MICHAEL SCOFIELD, Charlotte, North Carolina, for Appellant.
Margaret B. Seymour, United States Attorney, Columbia, South Caro-
lina, for Appellee.

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OPINION

RUSSELL, Circuit Judge:

James McQueen appeals his two concurrently-running sentences
from his convictions for conspiracy to distribute heroin, cocaine, and
crack cocaine, marijuana, and various prescription pills, and for mak-
ing a material false declaration before a grand jury. McQueen asserts
that the Government's breach of its plea agreement warrants remand-
ing his case for resentencing. Because the Government violated the
terms of the plea agreement, we vacate McQueen's sentence and
remand the case for specific performance of that agreement.

I.

In the mid-1980s, James McQueen began delivering heroin for
Frank and Leroy Jones, Jr., kingpins of a drug distribution organiza-
tion in South Carolina. By the early 1990s, McQueen's responsibili-
ties included purchasing and delivering marijuana, and assisting
Frank Jones in distributing prescription pills. McQueen's drug activi-
ties finally led to his arrest in March 1994.

One month after McQueen's arrest, a federal grand jury issued a
superseding indictment charging him with conspiracy to distribute
heroin, cocaine, crack cocaine, marijuana, and various prescription
pills in violation of 21 U.S.C. § 846 and with making a material false
declaration before a grand jury in violation of 18 U.S.C. § 1623.
McQueen's perjury charge stemmed from his appearance before an
earlier federal grand jury. At that appearance he had denied any
knowledge of the Jones' illegal organization and any personal
involvement therein.

At McQueen's trial, the jury found him guilty of the perjury count.
While the jury continued deliberating on the conspiracy count, the
Government and McQueen entered into an oral plea agreement, which

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was never reduced to writing. Pursuant to the plea agreement, Mc-
Queen pled guilty to the conspiracy charge. As gleaned from the tran-
script of the guilty plea hearing, the Government promised to (1) rec-
ommend that McQueen receive a sentence of no more than 63
months; and (2) recommend that McQueen receive a two-level adjust-
ment for acceptance of responsibility.

At McQueen's sentencing hearing, the Government failed to honor
both of its promises under the plea agreement. In fact, when the dis-
trict court determined McQueen had not accepted responsibility and
his sentence fell within the applicable guideline range of 78-90
months, the Government said it could not ask the court to give Mc-
Queen 63 months because it believed there was no factual or legal
basis for a downward departure. Furthermore, the Government stated
that when it had agreed to recommend a sentence of 63 months, it had
assumed "that [McQueen] would get acceptance of responsibility." In
other words, the Government had pre-calculated the acceptance of
responsibility departure into the 63 month agreement. Consequently,
McQueen received 78 months imprisonment on the drug conspiracy
charge and 60 months imprisonment on the perjury count, the sen-
tences to run concurrently.

II.

McQueen asserts that the Government's failure to argue the plea
agreement terms to the sentencing court amounted to a breach of the
plea agreement. The Government concedes (and the record of evi-
dence supports) that it breached the plea agreement by not keeping
either promise. Because McQueen raises this issue for the first time
on appeal, however, we must affirm the sentence imposed by the dis-
trict court unless we find plain error.1

The interpretation of plea agreements is guided by contract law,
and parties to the agreement should receive the benefit of their bargain.2
Because a defendant's fundamental and constitutional rights are
implicated when he is induced to plead guilty by reason of a plea
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1 United States v. Fant, 974 F.2d 559, 565 (4th Cir. 1992).

2 United States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993).

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agreement, our analysis of the plea agreement or a breach thereof is
conducted with greater scrutiny than in a commercial contract.3 When
reviewing a breached plea agreement for plain error, therefore, we
must establish whether the breach was "so obvious and substantial
that failure to notice and correct it affect[ed] the fairness, integrity or
public reputation of the judicial proceedings." 4

McQueen entered into an oral plea agreement with the Government
that induced him to plead guilty to the conspiracy charge against him.
At the sentencing hearing, however, the Government eschewed its
obligations under the plea agreement. The Government now claims it
"unintentionally" failed to abide by its promises because the Assistant
United States Attorney ("AUSA") was unable to recall the exact terms
of the plea agreement for two reasons. First, the plea was never
reduced to writing. Second, he did not have a copy of the transcript
from the guilty plea hearing. This court will not tolerate such excuses,
particularly when the record of evidence reveals that the same AUSA
who bargained for the plea agreement was present at both the guilty
plea hearing and the sentencing hearing. The Government's failure to
argue the terms of the oral plea agreement to the district court at the
sentencing hearing constituted a breach of the plea agreement. And
because violations of plea agreements on the part of the government
serve not only to violate the constitutional rights of the defendant, but
directly involve "the honor of the government, public confidence in
the fair administration of justice, and the effective administration of
justice in a federal scheme of government,"5 we hold that the Govern-
ment's breach constituted plain error.

Equally as troubling as the breach itself is the cursory manner in
which the Government recited the oral plea into the record at the
guilty plea hearing. The incompleteness of its recitation prompts us
to question why the Government failed to reduce the plea agreement
to writing upon its making. When a defendant's fundamental and con-
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3 Id.
4 Fant, 974 F.2d at 565 (quoting United States v. Navejar, 963 F.2d
732, 734 (5th Cir. 1992)).
5 United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (quoting
United States v. Carter, 454 F.2d 426, 428 (4th Cir. 1992)).

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stitutional rights hang in the balance, we hold that justice requires and
common sense dictates memorializing the terms of the plea agree-
ment. Because the government bears a greater responsibility than the
defendant for inaccuracies and ambiguities in a plea agreement, we
believe it behooves the government to reduce all oral pleas to writing.6
Accordingly we suggest that lower courts require all future plea
agreements be reduced to writing. At the beginning of the sentencing
hearing, it would be incumbent upon the prosecutor and the defendant
to apprise the court of the existence of the plea agreement and to sub-
mit each document to the court as a part of the official record. The
time involved in memorializing the plea agreement is minimal as
compared to the time wasted on appeal. The effort involved promotes
not only the efficient administration of justice, but serves to safeguard
the integrity and fairness of the plea process.

III.

Because the Government committed plain error in breaching the
plea agreement, we grant McQueen the requested specific perfor-
mance and remand his case to a different district judge for resentencing.7
At the new sentencing, the district judge is to ensure the parties accu-
rately and completely reduce the earlier oral plea agreement to writ-
ing. The Government will then be required to satisfy its obligations
under the written agreement.

VACATED AND REMANDED
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6 Id.
7 United States v. Peglera, 33 F.3d 412, 415 (4th Cir. 1994).

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