                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2086
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Tyler M. Leach,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 14, 2009
                                Filed: April 13, 2009
                                 ___________

Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge.1
                            ___________

SMITH, Circuit Judge.

      Tyler M. Leach, after entering into a written plea agreement with the
government, pleaded guilty to knowingly using a facility of interstate commerce to
attempt to entice a minor into engaging in illegal sexual conduct, in violation of 18
U.S.C. § 2422(b). During resentencing,2 the district court3 sentenced Leach to 120

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
      2
       In United States v. Leach, this court vacated Leach's 72-month sentence,
holding that the district court failed to apply U.S.S.G. § 4B1.5 to his offense of
conviction. 491 F.3d 858, 868 (8th Cir. 2007). On remand, Leach faced an advisory
months' imprisonment. Leach appeals, arguing that the government breached a
"possible oral agreement" to recommend the low end of the Guidelines range at
sentencing. According to Leach, the government's request for a sentence at the high
end of the Guidelines range breached its negotiated duty under the plea agreement.
Thus, he contends that he should be relieved from his reciprocal duty not to seek a
sentence below the Guidelines range and have the opportunity on remand to ask for
a sentence below ten years' imprisonment. We affirm.

                                    I. Background
        The government charged Leach in a three-count indictment with knowingly
using a facility of interstate commerce to attempt to entice a minor into engaging in
illegal sexual conduct, in violation of 18 U.S.C. § 2422(b) ("Count One"); traveling
in interstate commerce for the purpose of engaging in illicit sexual conduct with
another person, in violation of 18 U.S.C. § 2423(b) ("Count Two"); and criminal
forfeiture, pursuant to 18 U.S.C. § 2253 ("Count Three"). Leach entered into a plea
agreement, pleading guilty to Count One in return for the government dropping Count
Two and Count Three. In the plea agreement, Leach acknowledged that he was subject
to a five-year minimum sentence and a 60-year maximum sentence under 18 U.S.C.
§ 2426(a) because his "offense occurred after [Leach] had a prior sex offense
conviction."

      Relevant to the present appeal, ¶ 10(h) of the plea agreement provided that

      the United States agrees not to seek an upward departure from the
      Guidelines or a sentence outside the Guidelines range, and defendant
      agrees to not seek a downward departure from the Guidelines or a
      sentence outside the Guidelines range. The agreement by the parties to

Guidelines range of 168 to 210 months' imprisonment.
      3
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

                                         -2-
      not seek a departure from the Guidelines is not binding upon the Court
      or the United States Probation Office and the Court may impose any
      sentence authorized by law, including any sentence outside the
      applicable Guidelines range that is not "unreasonable" . . . .

       Additionally, ¶ 11 of the plea agreement specified that both Leach and the
government acknowledged and agreed "that there are no agreements between the
parties with respect to any Sentencing Guidelines issues other than those specifically
listed in Paragraph 10, and its subsections. As to any other Guidelines issues, the
parties are free to advocate their respective positions at the sentencing hearing."

       In ¶ 15 of the plea agreement, Leach waived his appellate and post-conviction
rights. In ¶ 19, Leach affirmed that "no threats or promises, other than the promises
contained in this plea agreement, have been made by the United States, the Court, his
attorneys or any other party to induce him to enter his plea of guilty." Finally, ¶ 20
provided:

      No Undisclosed Terms. The United States and defendant acknowledge
      and agree that the above-stated terms and conditions constitute the entire
      plea agreement between the parties, and that any other terms and
      conditions not expressly set forth in this agreement do not constitute any
      part of the parties' agreement and will not be enforceable against either
      party.

       At the change-of-plea hearing, Leach reaffirmed that there were no promises
"other than the Plea Agreement itself" that caused him to plead guilty. At his original
sentencing, the district court asked the government whether it was seeking a sentence
in excess of 63 months—the top of what the district court believed was Leach's
Guidelines range. In response, the government stated, "I believe [the government's]
oral agreement with Mr. Moss [Leach's attorney] if not in writing somewhere along
the line was to offer the bottom of the guideline range . . . after the final calculation."
The government argued that the correct Guidelines range was 168 to 210 months'

                                           -3-
imprisonment pursuant to U.S.S.G. § 4B1.5(a), but the district court refused to apply
the enhancement, finding that 60 to 63 months' imprisonment was the applicable
Guidelines range. The government objected to the district court's ruling that the
enhancement did not apply. The government then made three separate sentencing
recommendations based on the three Guidelines ranges that might potentially have
applied to Leach, each time recommending a sentence at the low end of the Guidelines
range. In conjunction with these recommendations, the government stated:

      Because the Court has ruled against the Government on both of these
      enhancements, we are left with, as already noted, the range of 60 to 63
      months. And while there has been some discussion on the record and just
      with Mr. Moss on whether the Government orally agreed to recommend
      the bottom of the guideline range, essentially [neither]4 Mr. Moss [n]or
      the Government can remember if there was an oral agreement to that.

       The district court sentenced Leach to 72 months' imprisonment. The
government appealed, contending that the district court erred in not applying
§ 4B1.5(a) or, in the alternative, § 4B1.5(b). Leach, 491 F.3d at 859. After holding
that § 4B1.5(a) applied to Leach, this court vacated Leach's sentence and remanded
for resentencing. Id. at 868.

      At resentencing, the following exchange occurred between the court and the
government:

      THE COURT: The Government's commitment under the Guidelines I
      think is not to ask for more than the minimum, and so I take it that the
      Government, you said this before, you are asking for the new minimum
      under the Sentencing Guidelines, 168 months; is that correct?


      4
       Although the word "neither" does not appear in the transcript, the context of
the sentence indicates that it was inadvertently omitted from the transcription of the
government's remarks.

                                         -4-
      MS. CORDES [for the government]: I am sorry, Judge. I misunderstood.
      Are you saying the Government can't ask for the upper end of the
      Guideline range?

      THE COURT: I thought, and may be mistaken. No, I think you are
      probably right. I suppose I have forgotten exactly the terms in the Plea
      Agreement. You are committed to not ask for—well, I thought there was
      something in the Plea Agreement that said you would recommend the
      minimum under the Guidelines.

       Leach's attorney then interjected that, as he remembered the original sentencing
hearing, the government "felt compelled to ask for the low end of the Sentencing
Guidelines," even though that was "not written in the Plea Agreement." Leach's
attorney then explained:

      I don't know, and I can tell the Court, I don't personally recall any oral
      agreement between us, but I believe that at the initial sentencing hearing
      Ms. Cordes [for the government] has referred to a Government
      agreement not to oppose sentencing at the low end of the range.

      I don't believe that is in the written Plea Agreement. I think that is what
      was asked for in the original sentencing, which would be 60 months. I
      can't really say that I have any documentation other than my recollection
      of what was discussed at the sentencing hearing.

        The court acknowledged that its recollection, which was consistent with what
Leach's attorney remembered, might have been based on what was stated at the
sentencing hearing, rather than the text of the plea agreement. The government's
attorney then asked for a recess to refresh her memory by reviewing a transcript of the
initial sentencing hearing. The recess request emphasized that the government did not
want to take a position at sentencing that conflicted with either the written plea
agreement or any oral representations that the government might have made to Leach's
attorney.


                                         -5-
       After the recess, the government's attorney stressed the seriousness of the
offense and emphasized that Leach was likely to reoffend. She emphasized that
nothing in the record indicated that the parties had, in fact, reached any oral agreement
with respect to a government sentencing recommendation; instead, she asserted that
the record showed that both the government and Leach's attorney were "unaware of
exactly what oral agreement" there might have been regarding a sentencing
recommendation and that the parties had only discussed "the mere possibility of an
oral agreement." The government's attorney then stated:

      If there was an oral agreement, there is nothing in the Plea Agreement
      that restricts the Government asking for the top of the Guidelines range,
      and if there was an oral agreement of any sort, Mr. Moss [Leach's
      attorney] and I can't recall at this time.

      I certainly don't ever mean to violate an oral agreement that I have made
      with a defense attorney. With that being in mind this is a case where the
      Government would like the top of the Guideline.

        Leach's attorney then objected to the government's recommendation, arguing
that it constituted a breach of a possible oral agreement:

      The Government is correct. Judge, I don't recall the details of our oral
      agreement regarding the low end of the range. The transcript very clearly
      at the prior hearing states that we think there may have been an oral
      agreement.

      That is why the Government asked for the low end at each and every
      point, at the enhancement level, at the four level, the other level, and then
      at this level, of 60 to 63 months. I don't remember the details either, but
      two years ago the Government was under the impression that, hey, there
      may be an agreement, we couldn't figure it out, and they abided by that
      agreement.



                                          -6-
      I consider this a breach of the agreement. I do consider it a breach, I
      object, and if we are going to say that we think we had an oral agreement
      two years ago, but now we don't remember the details, why is that
      not—we honored it back then. Why are we not honoring it now? So, I
      would consider it a breach.

      I don't know the details of it now, and I can't say what the details were.
      But the transcript is what it is, Judge, and so we do object on that basis.

In response, the government's attorney stated:

      First of all, with regard to the agreement at the prior sentencing that Mr.
      Moss is referencing, I have the transcript right here and it flat-out says
      that Mr. Moss nor the Government can remember if there was an oral
      agreement.

      So, I gave Mr. Moss the benefit of the doubt at that hearing and the idea
      there may have been an oral agreement. There is no evidence to support
      that. The record very clearly reflects that. No one can remember if there
      was or not.

      There is no basis for an objection either because it certainly is not clear
      in the Plea Agreement for us to ask for the bottom of the Guideline. So
      there is no breach of the Plea Agreement.

      The district court, without ruling or even commenting on Leach's objection,
sentenced Leach to 120 months' imprisonment. The government objected to the
sentence as being unreasonably low, and Leach's attorney responded that he "ha[d] no
objection, other than the breach issue, which ha[d] already been noted."

                                   II. Discussion
      On appeal, Leach argues that the government's breach of the oral agreement to
recommend the bottom of the Guidelines range should permit him to argue for a
sentence below the low end of the Guidelines range; thus, he asks this court to remand


                                         -7-
the matter to the district court to allow him to advocate for a sentence unrestricted by
the provision of the plea agreement that required him to ask for a sentence within the
Guidelines range. According to Leach, in 2006, the government recommended the
most lenient Guidelines sentence based on a "potential oral agreement" with Leach.
More than two years later, the government recommended the most severe Guidelines
sentence, despite the prior recommendation. Leach maintains that "[a]lthough the
parties did not recall its underlying details, the government['s] conduct at the original
sentencing established that such recommendation constituted part of its negotiated
duty under the plea agreement with [him]." Leach asserts that a breach of a plea
agreement constitutes a due process violation and that, while the district court
ultimately imposed a sentence below the Guidelines range, the government's advocacy
for a more severe sentence could have affected the extent of the court's downward
variance.

      In response, the government argues that Leach is not entitled to resentencing
on the mere possibility, however remote, that the government "might" have violated
a "possible oral agreement" between the parties to recommend a sentence at the low
end of the Guidelines.

       "Issues concerning the interpretation and enforcement of a plea agreement are
reviewed de novo." United States v. Paton, 535 F.3d 829, 835 (8th Cir. 2008) (internal
quotations and citation omitted). "Plea agreements are contractual in nature and should
be interpreted according to general contract principles. Due process may be violated
if there is a breach of a promise that induced a guilty plea." United States v. Sanchez,
508 F.3d 456, 460 (8th Cir. 2007) (internal citation omitted). "The party asserting the
breach—here, the Defendant—has the burden of establishing a breach." United States
v. Smith, 429 F.3d 620, 630 (6th Cir. 2005).

      When an alleged oral promise is made prior to, or in conjunction with, a plea
agreement, such promise cannot serve as an inducement to plead guilty when the

                                          -8-
defendant's "plea agreement and plea-hearing representations negate such a claim."
United States v. Norris, 20 Fed. Appx. 582, 583 (8th Cir. 2001) (unpublished per
curiam) (declining to address defendant's argument that he was induced into pleading
guilty by the government's oral promise of a substantial assistance motion). This is
because, "[a]bsent special circumstances, a defendant—quite as much as the
government—is bound by a plea agreement that recites that it is a complete statement
of the parties' commitments." United States v. Connolly, 51 F.3d 1, 3 (1st Cir. 1995).
Thus, "[a]n integration clause normally prevents a criminal defendant, who has
entered into a plea agreement, from asserting that the government made oral promises
to him not contained in the plea agreement itself." United States v. Hunt, 205 F.3d
931, 935 (6th Cir. 2000); see also United States v. Ahn, 231 F.3d 26, 36 (D.C. Cir.
2000) (stating that an integration clause, "[s]tanding alone," is "strong evidence that
no implied promises existed—after all, integration clauses establish that the written
plea bargain was adopted by the parties as a complete and exclusive statement of the
terms of the agreement") (internal quotations and citation omitted).

      The First Circuit, in rejecting a defendant's argument that the court should
supplement the written plea agreement by "engrafting onto it the oral representation
allegedly made by the United States Attorney during the pre-plea negotiations,"
explained why such an argument is without merit:

      The appellant's position flies in the teeth of paragraph 22 of the
      Agreement, which states flatly that the written document constitutes the
      complete agreement between the parties and that the "United States has
      made no promises or representations except as set forth in writing in this
      plea agreement and deny [sic] the existence of any other terms and
      conditions not stated herein." Where, as here, an unambiguous plea
      agreement contains an unqualified integration clause, it normally should
      be enforced according to its tenor. That means, of course, that an
      inquiring court should construe the written document within its four
      corners, "unfestooned with covenants the parties did not see fit to



                                         -9-
      mention." [United States v.] Anderson, 921 F.2d [335,] 338 [(1st Cir.
      1990)].

United States v. Alegria, 192 F.3d 179, 185 (1st Cir. 1999); see also Smith, 429 F.3d
at 630–31 (holding that integration clause in plea agreement precluded defendant from
asserting that government had made oral promise to move for additional one-level
reduction under Guidelines' acceptance of responsibility provision; defendant
submitted no affidavit and did not seek evidentiary hearing to establish understanding
outside four corners of agreement, and government flatly denied that it had made any
such promise); United States v. Cieslowski, 410 F.3d 353, 361 (7th Cir. 2005) ("The
written plea agreement contains an integration clause and explicitly disclaims the
effectiveness of any prior oral representation. Plea agreements are governed under the
principles of contract law, and oral representations cannot alter the terms of a written
agreement.") (internal citation omitted); United States v. Lenoci, 377 F.3d 246, 258
(2d Cir. 2004) (holding that a plea agreement did not prevent the government from
arguing for an upward departure, pointing out that the agreement specifically stated
that "the defendant acknowledges that no other promises, agreements, or conditions
have been entered into other than those set forth in this plea agreement, and none will
be entered into unless set forth in writing by all the parties").

       Conversely, when an alleged oral promise is made subsequent to the defendant's
entry of his guilty plea and is "not made as part of the inducement to plead guilty,"
then such a promise cannot serve as a "part of the inducement or consideration
underlying the guilty plea." United States v. Hart, 397 F.3d 643, 647 (8th Cir. 2005)
(holding that government did not breach any promise it made to move for sentencing
reduction based upon defendant's substantial assistance, in exchange for defendant
setting up a "sting or buy/bust arrangement," by failing to move for such sentencing
reduction, as the alleged promise was made between the time of sentencing and
resentencing, so that it was not used as an inducement for the defendant to plead
guilty, and defendant did not set up any type of "sting or buy/bust arrangement").


                                         -10-
       Applying the reviewed case law to the instant facts, we reject Leach's argument
that he should have been permitted to advocate for a more lenient sentence because
of the government's alleged breach of an oral promise. First, Leach has all but
conceded that there was no definitive oral promise, as Leach simply alleges that the
"government's recommendation was based on a possible oral agreement between the
parties." Furthermore, at resentencing, Leach's attorney stated that he did not
"personally recall any oral agreement between" the government and Leach. He also
admitted that such promise was not contained in the written plea agreement. See
Smith, 429 F.3d at 630–31 (finding that the defendant failed to produce sufficient
evidence to establish a breach of the plea agreement where defendant's counsel "all
but conceded that here had been no such promise" when he stated that both sides "do
have different opinions on what was said and what was—I wouldn't say as much
promise, but what the understanding was when he entered his plea of guilty").

       Second, as explained in Norris, Connolly, Hunt, and Alegria, if the alleged oral
promise was made before Leach's entry of his guilty plea, then that promise would
have been subsumed in, and superceded by, the written plea agreement. Paragraphs
11, 19, and 20 of the plea agreement indicate that the written plea is the complete
statement of the parties' commitments. See Connolly, 51 F.3d at 3. In fact, ¶ 20 of the
plea agreement is an integration clause, which establishes that "the above-stated terms
and conditions" contained in the written plea agreement "constitute the entire plea
agreement between the parties, and that any other terms and conditions not expressly
set forth in this agreement do not constitute any part of the parties' agreement and will
not be enforceable against either party." We will enforce this integration clause, as it
is "strong evidence" that no oral promise existed. See Ahn, 231 F.3d at 36.
Furthermore, Leach reaffirmed at the change-of-plea hearing that there were no




                                          -11-
promises "other than the Plea Agreement itself" that caused him to plead guilty. Leach
is bound by this representation to the district court.5

       Finally, if the alleged oral promise was made after Leach entered his guilty
plea, then such promise could not have induced him to enter his guilty plea. See Hart,
397 F.3d at 647; United States v. Quan, 789 F.2d 711, 714 (9th Cir. 1986) ("Post-
signing discussions are irrelevant because they could not have induced [the defendant]
to sign the agreement or plead guilty.").

                                III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




      5
       Leach has not alleged that the district court committed error during his change-
of-plea hearing.

                                         -12-
