                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3149
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa.
Veronica Mosley,                          *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 16, 2007
                                 Filed: October 12, 2007 (corrected 10/16/07)
                                                         (corrected 11/14/07)
                                  ___________

Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Veronica Mosley pled guilty to aiding and abetting armed bank robbery, in
violation of 18 U.S.C. §§ 2, 2113(a), (d). The district court sentenced her to 135
months’ imprisonment. On appeal, Mosley contends that the government breached
a plea agreement between the parties when it argued at sentencing that Mosley failed
to accept responsibility because of false statements she made to authorities prior to the
plea agreement. We agree that there was a breach, and in accordance with governing
precedent, we thus vacate Mosley’s sentence and remand for resentencing by a
different judge.
                                           I.

       On October 6, 2005, Mosley and four others participated in an armed bank
robbery in Iowa Falls, Iowa. Mosley was arrested on October 6, the day of the
robbery, and gave two interviews to FBI agents. On October 14, 2005, Mosley took
part in a proffer interview in which she gave statements to an FBI agent and an
Assistant United States Attorney about her involvement in the bank robbery. A grand
jury later returned a four-count Superceding Indictment against Mosley and four co-
defendants, charging them with violations of federal law in connection with the
robbery. Pursuant to a plea agreement, Mosley pled guilty to aiding and abetting
armed bank robbery under Count Two of the Superceding Indictment. (R. Doc. 89-2,
Plea Agreement at ¶1). Mosley admits that she made misleading statements during
the proffer interviews by minimizing her involvement in the robbery, but she contends
that the government was aware of her deception before it reached the plea agreement.

        Mosley’s plea agreement contained a provision regarding her entitlement to an
adjustment for acceptance of responsibility under USSG § 3E1.1. That provision
states:

      The parties stipulate and agree, that as of the date of this agreement,
      defendant appears to qualify for a two-level downward adjustment for
      acceptance of responsibility. However, the government shall be free to
      contest the adjustment under USSG § 3E1.1(a) should the defendant
      subsequently fail to continue to accept responsibility by failing to pay the
      special assessment; by providing false information to the court, the
      probation office, or the government; by unlawfully using controlled
      substances; by attempting to obstruct justice; by breaching this plea
      agreement; or by acting in a way that is inconsistent with, or failing to
      act in any way that is consistent with, the granting of the adjustment
      under USSG § 3E1.1(a).




                                          -2-
(Plea Agreement at ¶ 7B). The agreement goes on to state that “[t]he parties make no
other stipulations regarding offense level adjustments or guideline enhancements.”
(Id. at ¶ 8).

        The district court accepted Mosley’s guilty plea, and the United States
Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR
recommended no upward adjustment for obstruction of justice under USSG § 3C1.1,
and recommended that Mosley receive a two-level downward adjustment for
acceptance of responsibility under § 3E1.1(a). The government responded with a
letter to the probation office, stating in part that “[t]he United States has developed
new information that sheds a different light on defendant’s sentencing.” (PSR
Addendum, Govt. Letter at 1). The letter outlined allegations that Mosely played a
prominent role in the robbery and was involved in obtaining a gun that was used in
commission of the crime. According to the letter, “[t]his information is contrary to
information Mosley conveyed in an October 6, 2005 interview after her arrest and
contrary to a proffer she gave on October 14, 2005.” (Id. at 3). The letter then
announced the government’s objections to the PSR’s recommendations on obstruction
of justice, acceptance of responsibility, and role in the offense. It concluded by
arguing that “[d]efendant obstructed justice and, therefore, has not accepted
responsibility.” (Id.)

       Through her attorney, Mosely responded with a letter to the probation office.
That letter, dated April 27, 2006, objected to the PSR’s recommendation of a six-level
enhancement for use of a firearm, and said that Mosley “denies knowledge of the use
of any firearm in this offense.” (Id., Mosley Letter at 1). The letter also denied the
government’s claims that Mosley was a leader or organizer of the robbery, and that
she was involved in obtaining a gun.

      The parties next submitted sentencing memoranda to the district court. The
government’s memorandum stated that Mosley “obstructed justice by lying to

                                         -3-
investigators shortly after her arrest and during a proffer interview with counsel and
the government.” (R. Doc. 158 at 2). The government urged that “[s]ince defendant
obstructed justice, she is not entitled to an acceptance of responsibility reduction.”
(Id. at 3). Mosley’s memorandum, in reply, claimed that “the government now seeks
to withdraw from [the] plea agreement without valid justification or cause,” and asked
the district court to “compel specific performance of the plea agreement by the
government.” (R. Doc. 157-2 at 2). The defense reiterated this position at the
sentencing hearing, where it also requested that the district court assign the case to a
different judge for sentencing.

       At the two-day sentencing hearing, the district court heard evidence in support
of the government’s position that Mosley lied in her pre-plea statements to authorities,
and that she therefore obstructed justice and failed to accept responsibility. The court
ultimately ruled that the plea agreement precluded the government from arguing that
Mosley failed to accept responsibility based on these pre-plea statements, and ordered
specific performance of the agreement. But the court found that the government did
not breach the plea agreement, because rather than making an argument about whether
Mosley was entitled to acceptance of responsibility, the government had “only argued
about how to interpret” the agreement. The court thus denied Mosley’s request that
the case be reassigned to another judge for sentencing. The court further ruled that
even though the government could not use Mosley’s pre-plea statements to argue that
she failed to accept responsibility, it could use these statements to argue that she
obstructed justice. Moreover, the court held, the government could use Mosley’s
post-plea statements to argue both that she obstructed justice and that she failed to
accept responsibility.

       The court concluded that Mosley obstructed justice in her letter of April 27,
2006, to the probation office, a post-plea statement in which Mosley falsely “denied
her role in obtaining the firearm and its use in the armed bank robbery.” Because she
“provided materially false information” to a probation officer in respect to a

                                          -4-
presentence investigation, the court applied a two-level upward adjustment for
obstruction of justice under USSG § 3C1.1. The court also concluded that Mosley
failed to qualify for a two-level reduction for acceptance of responsibility, because in
her letter to the probation office, she falsely denied relevant conduct, namely, her role
in obtaining the firearm. See USSG § 3E1.1, comment. (n.1(a)).

       After adjusting the offense level upward six levels for use of a firearm, and
declining to make a four-level upward adjustment for role in the offense, the district
court determined that Mosley had an adjusted offense level of thirty-two and Criminal
History Category of I, for an advisory guideline range of 121-151 months. The court
evaluated the factors set forth in 18 U.S.C. § 3553(a), and sentenced Mosley to 135
months’ imprisonment. Mosley appeals her sentence, arguing that the district court
erred by allowing the government to argue for a two-level adjustment for obstruction
of justice and against a two-level adjustment acceptance of responsibility based on her
pre-plea statements.

                                           II.

                                           A.

      We review questions regarding the interpretation and enforcement of plea
agreements de novo. Where a plea agreement has been accepted by the court, we
generally interpret the meaning of the terms in the agreement according to basic
principles of contract law. United States v. Norris, 486 F.3d 1045, 1051 (8th Cir.
2007) (en banc) (plurality opinion); id. at 1054 (concurring opinion).

       In the plea agreement, “[t]he parties stipulate and agree, that as of the date of
this agreement, defendant appears to qualify for a two-level downward adjustment for
acceptance of responsibility.” (Plea Agreement at ¶ 7B). The agreement preserves
the government’s right to contest the adjustment “should the defendant subsequently

                                          -5-
fail to continue to accept responsibility.” (Id.). We agree with the district court that
these provisions prohibit the government from arguing that Mosley failed to accept
responsibility based on her pre-plea statements. In exchange for Mosely’s guilty plea,
the government promised to take the position that she had accepted responsibility at
the time of the plea agreement. Any argument that Mosley failed to accept
responsibility because of actions taken before signing the agreement would conflict
with the government’s promise, and would therefore breach the agreement.

       We also conclude that the government breached the agreement by making this
prohibited argument. In its letter to the probation office objecting to portions of the
PSR, the government stated that Mosley “obstructed justice and, therefore, has not
accepted responsibility,” because she made false statements in her pre-plea interviews.
(PSR Addendum, Gov’t Letter at 3) (emphasis added). In its opening sentencing
memorandum to the district court, the government argued that Mosley “obstructed
justice by lying to investigators shortly after her arrest and during a proffer interview
with counsel and the government,” (R. Doc. 158 at 2), and concluded that “[s]ince
defendant obstructed justice, she is not entitled to an acceptance of responsibility
reduction.” (Id.) (emphasis added). At the sentencing hearing, the government
reiterated its position, (S. Tr. 11), and offered evidence that Mosley had given false
statements to authorities prior to the plea agreement. We do not think that these were
merely arguments about “how to interpret” the agreement. These were arguments that
Mosley was not entitled to acceptance of responsibility because of her pre-plea
statements. As such, the arguments breached the plea agreement. See United States
v. McCray, 849 F.2d 304, 305-06 (8th Cir. 1988) (per curiam).

      At oral argument on appeal, the government offered another theory to explain
why its actions were not a breach. It contends that once Mosley submitted false
information to the probation office, she “fail[ed] to continue to accept responsibility,”
(Plea Agreement at ¶ 7B), and the government was therefore free to contest
acceptance of responsibility by using any evidence, including Mosley’s pre-plea

                                          -6-
statements. Even if we accepted this interpretation of the agreement, it would not win
the day, because the government had breached the agreement even before Mosley sent
her letter to the probation office. In its objections to the PSR, the government argued
that Mosley should be denied an adjustment for acceptance of responsibility based on
her pre-plea statements. But we also find unpersuasive the government’s argument
based on the language of the agreement. The more natural reading of the provision
concerning the defendant’s failure “to continue to accept responsibility” is that the
government may contest the adjustment based on subsequent acts of the defendant
that are inconsistent with the previous agreement that the defendant accepted
responsibility. To the extent there is ambiguity in this provision, we are constrained
to construe it against the government. See United States v. Andis, 333 F.3d 886, 890
(8th Cir. 2003) (en banc). Therefore, we agree with the district court that the
government could not use Mosley’s pre-plea statements to argue that she failed to
accept responsibility.

                                          B.

       It is undisputed that the government’s stipulation that Mosley was entitled to
an adjustment for acceptance of responsibility was part of the inducement for her plea.
“[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); see
also Mabry v. Johnson, 467 U.S. 504, 509 (1984). After the district court has
accepted a guilty plea, the government’s material breach of the plea agreement
violates the defendant’s due process rights. Norris, 486 F.3d at 1048 (plurality
opinion). We turn, therefore, to the proper remedy.

       The record suggests that the district court likely would have arrived at the same
sentence, regardless of whether the government breached the plea agreement. The
district court itself recognized that the government could not contest acceptance of

                                          -7-
responsibility based on Mosley’s pre-plea statements, and the court articulated its
decision to deny the adjustment based entirely on Mosley’s actions after entry of her
guilty plea. Mosley does not dispute that the district court may properly consider her
post-plea conduct in determining whether she has accepted responsibility, but she
contends that the government’s breach of the agreement nonetheless requires a new
sentencing proceeding. We are constrained by precedent to conclude that the
government’s breach of the plea agreement is not subject to traditional harmless-error
analysis, and that a remand for resentencing is required.

       In Santobello, the prosecution breached a plea agreement by recommending the
maximum sentence, after it had promised to make no sentencing recommendation.
The Supreme Court vacated the defendant’s sentence and remanded to the state courts
to determine whether the proper remedy was withdrawal of the defendant’s guilty plea
or resentencing before a different judge. In so doing, the Court stated:

      We need not reach the question whether the sentencing judge would or
      would not have been influenced had he known all the details of the
      negotiations for the plea.       He stated that the prosecution’s
      recommendation did not influence him and we have no reason to doubt
      that. Nevertheless, we conclude that the interests of justice and
      appropriate recognition of the duties of the prosecution in relation to
      promises made in the negotiation of pleas of guilty will be best served by
      remanding the case to the state courts for further consideration.

404 U.S. at 262-263 (emphasis added).

       By holding that it was immaterial whether the prosecution’s breach influenced
the trial judge’s decision, Santobello necessarily rejected the view that the
prosecution’s breach could have been harmless. This is how we interpreted
Santobello in McCray, 849 F.2d at 305-306, and it is also the consensus view among
our sister circuits, which hold that harmless-error analysis does not apply when the
government breaches a plea agreement. See United States v. Canada, 960 F.2d 263,

                                         -8-
271 (1st Cir. 1992); United States v. Vaval, 404 F.3d 144, 154-155 (2d Cir. 2005);
Dunn v. Colleran, 247 F.3d 450, 461-462 (3rd Cir. 2001); United States v. Peglera,
33 F.3d 412, 414 (4th Cir. 1994); United States v. Saling, 205 F.3d 764, 766-767 (5th
Cir. 2000); Cohen v. United States, 593 F.2d 766, 771-772 (6th Cir. 1979); United
States v. Fields, 766 F.2d 1161, 1170 n.3 (7th Cir. 1985); United States v. Mondragon,
228 F.3d 978, 981 (9th Cir. 2000); United States v. Hawley, 93 F.3d 682, 693-694
(10th Cir. 1996); United States v. Foster, 889 F.2d 1049, 1055-1056 & n.6 (11th Cir.
1989); accord United States v. DeWitt, 366 F.3d 667, 671-672 (8th Cir. 2004); United
States v. Van Horn, 976 F.2d 1180, 1183-84 (8th Cir. 1992). One decision from our
court does affirm a sentence, despite a breach by the government, on the view that the
breach had “little if any effect” on the district court’s decision. United States v.
Goings, 200 F.3d 539, 544 (8th Cir. 2000). The Goings opinion, however, does not
address Santobello, and we believe it is inconsistent with Santobello and our earlier
precedents in McCray and Van Horn.1




      1
        Just before this opinion was transmitted for filing, another panel of this court
relied on Goings to hold that the government’s breach of a plea agreement did not
require resentencing. United States v. E.V., No. 06-2906, 2007 WL 2683023, at *6
(8th Cir. Sept. 14, 2007). At the same time, however, the E.V. panel acknowledged
the “general rule” that the government’s breach is not ameliorated by a district court’s
statement that it was not influenced by the breach. Id. at *6 n.13 (citing McCray, 849
F.3d at 305-06). The E.V. panel nonetheless thought the “general rule” inapplicable
in that case, because “the possible influence of the breach [was] confined by both the
Sentencing Guidelines and other statutory restraints.” Id. Other courts have identified
“exceptions” to the general rule that harmless-error analysis does not apply, in
situations where (1) the government breaches the agreement by failing to do
something it has promised, but then fully cures its breach through specific
performance of its obligation, Vaval, 404 F.3d at 155, (2) the breach is so minor that
despite the breach, the defendant’s reasonable expectations under the agreement are
fulfilled, id., and (3) the district court already has imposed the lowest sentence
possible, such that resentencing would be meaningless. United States v. Belt, 89 F.3d
710, 713 (10th Cir. 1996). None of these potential exceptions is applicable here.

                                          -9-
       Whether the Supreme Court today would follow Santobello’s rejection of
harmless-error analysis is open to question. The Court has made clear that “most
constitutional errors can be harmless,” Arizona v. Fulminante, 499 U.S. 279, 306
(1991), and only a “very limited class” of errors, called “structural” errors, are an
exception to this general rule. Neder v. United States, 527 U.S. 1, 8 (1999). The
Court has identified a small number in that category: denial of counsel (including
counsel of choice), denial of the right to self-representation, denial of a public trial,
a defective reasonable-doubt instruction, race-based discrimination in jury selection,
and a biased judge. See United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2564
(2006); Neder, 527 U.S. at 8. These errors “affect[] the framework within which the
trial proceeds,” and are not “simply . . . error[s] in the trial process itself.”
Fulminante, 499 U.S. at 310. The Third Circuit has suggested obliquely that
Santobello should be understood as identifying a structural error, Dunn, 247 F.3d at
462, but we have indicated more recently that the class of structural errors likely is
limited to those expressly identified by the Supreme Court in Fulminante and Neder.
See United States v. Allen, 406 F.3d 940, 944 (8th Cir. 2005) (en banc); but cf.
Gonzalez-Lopez, 126 S. Ct. at 2564 (expanding list of structural errors to encompass
denial of counsel of choice). Where, as here, the district court consciously refrains
from considering the government’s improper argument, it is not readily apparent why
the breach should be considered among the limited class of errors whose
consequences are “necessarily unquantifiable and indeterminate,” Gonzalez-Lopez,
126 S. Ct. at 2564 (internal quotation omitted), or that “necessarily render” the
proceedings “fundamentally unfair” to the accused. Rose v. Clark, 478 U.S. 570, 577
(1986).2


      2
        Others have suggested that Santobello announced a necessary “prophylactic
rule,” because a district judge cannot erase from her mind damaging information that
resulted from the government’s breach. Foster, 889 F.2d at 1055-1056 n.6. This
strikes us as a curious explanation, given that the first act of a new sentencing judge
assuming the case on remand presumably would be to read the opinion of the court
of appeals, which recounts the government’s breach as the reason for the

                                          -10-
       Nonetheless, Santobello says what is says. The Supreme Court has made clear
that “if a precedent of [the] Court has direct application in a case, yet appears to rest
on reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to [the] Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989). The decisions of the Supreme Court “remain binding
precedent until [the Court] see[s] fit to reconsider them, regardless of whether
subsequent cases have raised doubts about their continuing vitality.” Hohn v. United
States, 524 U.S. 236, 252-253 (1998). Accordingly, following Santobello and circuit
precedent, we conclude that harmless-error analysis does not apply.

       Mosley seeks specific performance of the plea agreement, so the appropriate
procedure is to remand to the district court for resentencing. See Santobello, 404 U.S.
at 263 (stating that possible remedies include specific performance or withdrawal from
plea). Santobello held that the defendant in that case “should be resentenced by a
different judge.” Id. We adopted this approach in McCray, 849 F.2d at 305-06, and
have followed it on several occasions since then. United States v. Thompson, 403
F.3d 1037, 1041 (8th Cir. 2005); DeWitt, 366 F.3d at 671; Van Horn, 976 F.2d at 1183-
84; Brunelle v. United States, 864 F.2d 64, 65 (8th Cir. 1988) (per curiam); but see
United States v. Johnson, 241 F.3d 1049, 1055 (8th Cir. 2001) (remanding to district
court with no mention of reassignment); United States v. Van Thournout, 100 F.3d
590, 596 (8th Cir. 1996) (same). While some courts have held that resentencing by
a different judge is not always necessary, see United States v. Wolff, 127 F.3d 84, 87
(D.C. Cir. 1997); United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984); United
States v. Bowler, 585 F.2d 851, 856 (7th Cir. 1978), most circuits interpret Santobello
to require that a different judge must sentence the defendant on remand. Canada, 960
F.2d at 271; Vaval, 404 F.3d at 155; United States v. Rivera, 357 F.3d 290, 297 (3rd
Cir. 2004); Peglera, 33 F.3d at 415; Saling, 205 F.3d at 768; United States v. Fitch,


reassignment.

                                          -11-
282 F.3d 364, 368 (6th Cir. 2002); Mondragon, 228 F.3d at 981; United States v.
Cachucha, 484 F.3d 1266, 1271 (10th Cir. 2007); Foster, 889 F.2d at 1056; see also
Wolff, 127 F.3d at 89-90 (Randolph, J., concurring in part and dissenting in part).

       In accord with our earliest precedent in McCray, we follow the majority
approach here, and conclude that the case should be remanded to a different judge for
resentencing. “We emphasize that this is in no sense to question the fairness of the
sentencing judge,” Santobello, 404 U.S. at 263, who in this case correctly identified
how the government should have limited its advocacy in accordance with the plea
agreement. At resentencing, the government is not forbidden to contest Mosley’s
eligibility for an adjustment under USSG § 3E1.1, but it must rest any such argument
on Mosley’s post-plea conduct alone.

                                  *       *       *

       For the foregoing reasons, the sentence is vacated. The case is remanded to the
district court with directions that the case be reassigned to a different judge for
resentencing.
                            ______________________________




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