                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3736
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of Nebraska.
                                        *
M, A, Yah, also known as                *
Allen Cotton,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 15, 2007
                                 Filed: September 11, 2007
                                 ___________

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Pursuant to a plea agreement, M, A, Yah pled guilty to one count of conspiracy
to commit bank fraud, a violation of 18 U.S.C. §§ 371 and 1344, and one count of
aggravated identity theft, a violation of 18 U.S.C. § 1028A. The district court
sentenced Yah to a total of 54 months of imprisonment. Yah appeals his sentence,
alleging (1) the district court erred in imposing a four-level leadership enhancement
pursuant to United States Sentencing Guidelines § 3B1.1(a), (2) the government
breached the plea agreement by not recommending the low end of the applicable
Guidelines range, and (3) his sentence is unreasonable. We affirm in part, reverse in
part, and remand for further proceedings consistent with this opinion.
I.    Background

       Yah was indicted in six counts of an eleven-count indictment for various
offenses related to bank fraud and use of false identification. All of the charges
stemmed from a scheme through which the co-conspirators would open bank accounts
using false identification based upon false birth certificates Yah created. Checks
would be written on those accounts for amounts exceeding the funds held in the
account. The co-conspirators would then cash the checks, again using false
identification based upon false birth certificates Yah made.

        Yah entered into a plea agreement with the government, agreeing to plead guilty
to conspiracy to commit bank fraud (Count I) and aggravated identity theft (Count
VIII), in return for the government’s dismissal of the remaining charges against him.
The plea agreement also included stipulations regarding the application of the United
States Sentencing Guidelines and the government’s position as to Yah’s sentence.
First, as to the government’s sentencing recommendation, the plea agreement stated:

      Provided that you demonstrate acceptance of responsibility to the
      Probation Office and to the Court, the undersigned Assistant United
      States Attorney stipulates that you notified authorities in a timely manner
      of your intention to enter a plea of guilty, thereby permitting the
      government to avoid preparing for trial and permitting the Court to
      allocate its resources efficiently. The undersigned Assistant United
      States Attorney for the District of Nebraska further agrees to recommend
      a sentence at the low end of the applicable sentencing guideline. The
      United States Attorney for the District Of Nebraska also agrees that the
      defendant will not be prosecuted for any additional criminal conduct in
      the District Of Nebraska emanating from the federal investigation [of]
      the defendant for Bank Fraud and Identity Theft.

(Emphasis added). Second, the government agreed to $7,876.75 as the amount of loss
for relevant conduct and restitution purposes. Third, the parties agreed that loss


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amount was the only specific offense characteristic adjustment under § 2B1.1 that
applied to Yah’s conduct. Fourth, the parties agreed to litigate “the applicability of
any enhancement for role in the offense.” Finally, the parties agreed to a total offense
level of 8, before application of either a reduction for acceptance of responsibility or
an increase due to role in the offense. The district court accepted Yah’s pleas of guilty
to Counts I and VIII and deferred acceptance of the plea agreement pending review
of a Presentence Investigation Report (PSR).

       The PSR presented a summary of the defendant’s relevant conduct and a
proposed sentencing calculation under the Guidelines. The PSR’s recommendations
differed from those contemplated in the plea agreement. First, the PSR recommended
that Yah be held responsible for $24,992.12 in loss, far greater than the plea
agreement loss amount of $7,876.75. Second, the PSR applied specific offense
characteristic adjustments from § 2B1.1 other than amount of loss. Third, the PSR did
not recommend Yah receive a reduction for acceptance of responsibility. Also, the
PSR resolved the dispute over the application of a role enhancement in favor of the
government, recommending a four-level increase pursuant to § 3B1.1(a). The
defendant timely objected to the PSR.

       After reviewing the PSR and considering the defendant’s objections, the district
court entered tentative findings on a number of contested issues. The court concluded
“the plea agreement should be upheld” as to the loss amount, the application of
additional § 2B1.1 specific offense characteristic adjustments, and acceptance of
responsibility. The court reserved ruling on the question of a role enhancement.




                                           -3-
      A.     Role Enhancement

       At the sentencing hearing the court considered whether Yah qualified for an
increase in offense level based upon his role in the offense. The government
presented testimony from Yah’s co-conspirators and co-defendants, Robert McFarland
and Clinton Brooks, regarding the nature of the conspiracy to commit bank fraud and
Yah’s role within the conspiracy. McFarland testified that the members of the
conspiracy used false identifications Yah provided to cash checks written on fake
bank accounts. After the co-conspirators cashed checks, they were required to turn
over a portion of the proceeds to Yah. McFarland stated he watched Yah and other
conspiracy members fraudulently cash checks before he did. McFarland identified
Annette Clark and Mark Rex as other members of the conspiracy to commit bank
fraud.

        Brooks testified that Yah brought him into the conspiracy and that Yah taught
him how to “scam.” Brooks provided Yah with his children’s social security cards
and Yah created false birth certificates using the children’s information. Brooks
testified that Yah supplied the checks that Yah, McFarland, Annette Clark, and he
cashed. The checks were in the name “Dairyonius Stewart,” which is a false name
that Yah has used. Brooks further testified that Yah instructed the conspiracy
members on how to utilize false checks most efficiently. Brooks also identified
Nathan Johns, Courtney Baker, and Tammy Bonnema as members of the conspiracy.

      The district court found McFarland and Brooks credible and relied upon their
testimony in determining that Yah was an organizer or leader of criminal activity
involving eight participants. Thus, the district court applied a four-level increase to
Yah’s offense level. See U.S.S.G. § 3B1.1(a).




                                          -4-
      B.     Government Recommendation

       After pleading guilty, but before sentencing, Yah was charged with a number
of state criminal offenses. The government argued at sentencing that Yah breached
the plea agreement by engaging in criminal conduct while on release pending
sentencing. Therefore, the government argued Yah should not be granted an
acceptance of responsibility reduction. The government further argued it was not
bound to make a recommendation at the low end of the applicable Guidelines range
because Yah failed to accept responsibility for his criminal conduct.

      The district court declined “to have a miniature trial on what may be a fairly
complex case against the defendant” on the new state charges and decided to grant a
two-level reduction for acceptance of responsibility despite the allegations. The court
responded to the government’s argument:


      [I]f the government contends that the defendant has in some way
      breached the plea agreement by engaging in additional criminal conduct
      while on pretrial release, and the government does not consider itself
      bound to recommend the low end, that’s fine.

            As far as I’m concerned, you can recommend what you want to
      recommend because it’s just a recommendation anyway. And I
      recognize that the guidelines are advisory, and I recognize that I can
      sentence anywhere in the statutory range.

      The government presented argument to the court in support of a sentence at the
high end of the Guidelines range, stating, in part:

             I do not feel constrained by the plea agreement to recommend a
      low end of the sentencing guideline range, your Honor, in part because
      paragraph 2 starts out saying, “Provided that you demonstrate acceptance
      of responsibility.” And then it goes on further, and then it says, “The


                                          -5-
      undersigned United States Attorney agrees to further recommend a
      sentence at the low end of the applicable guideline range.”

             I realize that the Court has given this particular defendant the
      benefit of some acceptance of responsibility. But I view my obligation
      to make a recommendation for the low end consistent with the plea
      agreement conditioned upon his acceptance of responsibility. And I
      think I’ve made a record of the fact that I don’t think that’s happened.
      So I am not asking the Court to sentence him at the low end of the
      guideline range.

The defendant objected to the government’s statements, arguing that the government
breached the plea agreement. The court did not specifically rule on the objection, but
responded:

      And for the record, regardless of what the government would have
      recommended in this case, it would not have affected what I am going to
      do in this case as far as the sentencing is concerned.

       Yah’s criminal history placed him in category VI, and, based on the
determinations discussed above, Yah’s total offense level was 10, resulting in an
advisory Guidelines range of 24–30 months for Count I. Count VIII carried a
statutory mandatory minimum of not less than two years of imprisonment, to be
served consecutively to any other term of incarceration. See 18 U.S.C. § 1028A. The
court sentenced Yah to 30 months in prison on Count I and 24 months in prison on
Count VIII, to be served consecutively.




                                         -6-
II.   Discussion

      A.     Role in the Offense

       Yah argues the district court erred in concluding he was a leader or organizer
of criminal activity involving five or more people. Thus, Yah contends the court erred
in imposing a four-level enhancement pursuant to § 3B1.1(a). “We review for clear
error the district court’s factual findings underlying the imposition of a sentencing
enhancement based on the defendant’s role in the offense,” United States v. Rosas,
486 F.3d 374, 376 (8th Cir. 2007), and examine de novo the application of the
Guidelines. United States v. Mickle, 464 F.3d 804, 807 (8th Cir. 2006).

       Under § 3B1.1, an upward adjustment of four levels applies if “the defendant
was an organizer or leader of a criminal activity that involved five or more
participants.” U.S.S.G. § 3B1.1(a). We interpret the terms “organizer” and “leader”
broadly. See United States v. Manuel, 912 F.2d 204, 207 (8th Cir. 1990) (“We have
recognized a broad definition of what constitutes a leadership and organizational
role.”) (internal quotation omitted). The factors considered in determining whether
a defendant is a leader or organizer include:

      the exercise of decision making authority, the nature of participation in
      the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and scope
      of the illegal activity, and the degree of control and authority exercised
      over others.

U.S.S.G. § 3B1.1, cmt. n.4.

      Considering these factors, the district court did not clearly err in finding Yah
was a leader or organizer of a scheme involving five or more people. First, the

                                         -7-
evidence supports the district court’s conclusion that the criminal activity involved
eight people. McFarland and Brooks specifically identified five people, in addition
to themselves and the defendant, who were involved in the conspiracy. Second, the
testimony of McFarland and Brooks also supports the district court’s conclusion that
Yah was a leader or organizer of the scheme. Yah created and distributed the
identification documents and the checks necessary to accomplish the fraud. He
instructed and advised the others on how to use the fraudulent checks most efficiently.
And, Yah received a portion of the proceeds from the other participants when they
successfully cashed the fraudulent checks. This testimony, which the district court
specifically found to be credible, provides sufficient grounds to conclude Yah was a
leader or organizer. Thus, the four-level enhancement under § 3B1.1(a) was properly
applied.

      B.     Government Recommendation

       Yah alleges the government breached the plea agreement by failing to
recommend a sentence at the low end of the applicable Guidelines range. The
government contends its obligation to recommend the low end of the Guidelines range
was conditioned upon Yah demonstrating acceptance of responsibility and Yah failed
to fulfill that condition by engaging in criminal conduct after his plea.

      “Issues concerning the interpretation and enforcement of a plea agreement are
reviewed de novo.” United States v. Borer, 412 F.3d 987, 994 (8th Cir. 2005). We
apply general contract principles in interpreting plea agreements. United States v.
Gomez, 271 F.3d 779, 781 (8th Cir. 2001).

      In considering whether the government’s recommendation agreement was
conditional, we turn to the text of the plea agreement. The portion of the plea
agreement addressing the government’s recommendation reads:



                                          -8-
      Provided that you demonstrate acceptance of responsibility to the
      Probation Office and to the Court, the undersigned Assistant United
      States Attorney stipulates that you notified authorities in a timely manner
      of your intention to enter a plea of guilty, thereby permitting the
      government to avoid preparing for trial and permitting the Court to
      allocate its resources efficiently. The undersigned Assistant United
      States Attorney for the District of Nebraska further agrees to recommend
      a sentence at the low end of the applicable sentencing guideline. The
      United States Attorney for the District Of Nebraska also agrees that the
      defendant will not be prosecuted for any additional criminal conduct in
      the District Of Nebraska emanating from the federal investigation [of]
      the defendant for Bank Fraud and Identity Theft.

The use of the term “[p]rovided” makes it is clear that the government conditionally
agreed that Yah met the standards outlined in § 3E1.1(b). See U.S.S.G. § 3E1.1(b)
(outlining the information the government must provide to the court in a motion for
an additional one-level reduction if the defendant has an offense level 16 or greater).
The condition precedent, however, cannot be read to apply to the government’s
“further” agreement to make a specific sentencing recommendation. The relevant
paragraph contains three independent promises of the government in return for Yah’s
guilty plea:

      1) Provided that you demonstrate acceptance of responsibility to the
      Probation Office and to the Court, the undersigned Assistant United
      States Attorney stipulates that you notified authorities in a timely manner
      of your intention to enter a plea of guilty, thereby permitting the
      government to avoid preparing for trial and permitting the Court to
      allocate its resources efficiently.

      2) The undersigned Assistant United States Attorney for the District of
      Nebraska further agrees to recommend a sentence at the low end of the
      applicable sentencing guideline.

      3) The United States Attorney for the District Of Nebraska also agrees
      that the defendant will not be prosecuted for any additional criminal

                                          -9-
      conduct in the District Of Nebraska emanating from the federal
      investigation [of] the defendant for Bank Fraud and Identity Theft.

(Emphasis added). The use of the words “further” in the second sentence and “also”
in the third demonstrates the independence of the three separate promises.

       Our court’s decision in United States v. Jensen, 423 F.3d 851, 853–54 (8th Cir.
2005), presents a similar scenario. There, the court found the government breached
the plea agreement by failing to move for the third-level reduction after the court
determined the defendant accepted responsibility for his crimes. The government
argued that a caveat earlier in the plea agreement applied and gave the government the
right not to recommend the third level of acceptance of responsibility. The court
“note[d] that the government could no doubt have drafted the agreement in such a way
as to make express its argued-for meaning,” but concluded the plea agreement could
not be so construed. Id. at 854.

       The government’s interpretation of its obligation to recommend a low-end
sentence strains the plain language of the plea agreement. Cf. Borer, 412 F.3d at
994–95 (finding no breach when the government failed to recommend the low end of
the guideline range, when the “plain language of the plea agreement” made the
obligation to do so contingent). Even if we were to accept the government’s alternate
interpretation as plausible, that would indicate the language of the plea agreement is
ambiguous. Because ambiguities in plea agreements are construed against the
government, our analysis would be unchanged. See United States v. Jensen, 423 F.3d
851, 854 (8th Cir. 2005) (“Where a plea agreement is ambiguous, the ambiguities are
construed against the government.”)

     Based upon the terms of the plea agreement, we conclude the government was
unconditionally obligated to recommend a sentence at the low end of the applicable
Guidelines range. Failure to do so constituted a breach of the plea agreement.


                                         -10-
       Having concluded that the government breached the plea agreement, we turn
now to the appropriate remedy. The district court specifically stated that the
government’s recommendation was irrelevant to the determination of Yah’s sentence,
so any error would seem to be harmless. However, the Supreme Court’s opinion in
Santobello v. New York, 404 U.S. 257 (1971), and subsequent cases in this court
make clear harmless error review is unavailable. Like the instant case, in Santobello,
the sentencing court stated it was not influenced by the prosecution’s
recommendation, which was contrary to the plea agreement. The Supreme Court
stated:

       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 . . . .

Id. at 262. As this court has since held, “[t]he fact that the district court stated that the
government’s remark did not influence its decision does not ameliorate the
government’s breach.” United States v. McCray, 849 F.2d 304, 305 (8th Cir. 1988).
Under Santobello, the defendant is entitled to specific performance and resentencing
by a different judge or the opportunity to withdraw his plea. 404 U.S. at 263. As such,
we must remand. Like the Supreme Court in Santobello, “[w]e emphasize that this
is in no sense to question the fairness of the sentencing judge; the fault here rests on
the prosecutor, not on the sentencing judge.” Id.

      In light of our decision to remand this case for re-sentencing, we decline to
address Yah’s claim that his sentence was unreasonable.




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III.   Conclusion

       The sentence is vacated, and the case is remanded for resentencing before a
different judge in accordance with the procedures of the District of Nebraska.
                        ______________________________




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