                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4316


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

XAYVER JERVONTE-MARQUI WARNER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:13-cr-00252-RJC-2)


Argued:   January 28, 2016                 Decided:   April 27, 2016


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Sentence vacated and case remanded by published opinion. Judge
Niemeyer wrote the opinion, in which Judge King and Judge Duncan
joined.



ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC.,   Charlotte,  North   Carolina,   for   Appellant.    Jill
Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       Xayver     Warner,    who   pleaded       guilty     pursuant    to    a   plea

agreement to one count of aiding and abetting the theft of a

firearm,       contends     that   the        government     breached       the    plea

agreement.      We agree.

       In the plea agreement, the government agreed to advise the

district court at sentencing that the parties had agreed that

the     4-level      enhancement     under       U.S.S.G.        §   2K2.1(b)(6)(B)

(increasing a defendant’s offense level for use or possession of

a firearm in connection with another felony offense) did not

apply.       The government’s agreement on the inapplicability of the

enhancement was based, at least in part, on its view that a

North    Carolina     conviction    for       breaking     and   entering    a    motor

vehicle did not constitute a felony offense for a defendant with

Warner’s criminal history.

       At sentencing, however, the government advised the court

that it had changed its position on whether a North Carolina

breaking and entering offense constituted a felony, concluding

that    it    did,   regardless    of     a    defendant’s       criminal    history.

Nonetheless, the government asked the court to honor the plea

agreement and not apply the enhancement to Warner.                      The court,

however, chose to apply the enhancement and sentenced Warner to

48 months’ imprisonment.



                                          2
       Because we conclude that the government, although acting in

good faith, breached its undertaking in the plea agreement by

stating    that        the       enhancement       did      apply,          we    vacate       Warner’s

sentence and remand for resentencing before a different district

judge, as required by Santobello v. New York, 404 U.S. 257, 263

(1971).


                                                  I

       After Warner and an accomplice broke into 19 motor vehicles

in a parking deck in Charlotte, North Carolina, and stole a .40

caliber pistol from one of the vehicles, a federal grand jury

returned      an       indictment         against          Warner,          charging       him      with

stealing a firearm that had moved in interstate commerce and

aiding     and       abetting       the     same,          in     violation         of    18     U.S.C.

§§ 924(l) and 2.             The government and Warner’s counsel thereafter

discussed        the      possibility        of        a        plea     agreement.              During

negotiations,          Warner’s          counsel       stated          in    an     email      to     the

government       that        a    plea    agreement             “would      obviously          have    to

include dismissal of all state charges[,] . . . [and] [w]e would

also   need      a     stipulation         that       the       4-level      enhancement            under

§ 2K2.1(b)(6)(B)             [for    using     or          possessing            ‘any    firearm        or

ammunition in connection with another felony offense’] does not

apply.”       In      a   responding        email,          the    Special         Assistant          U.S.

Attorney stated, “[A]t this time[,] I do not have information


                                                  3
that would implicate [Warner] under [§ 2K2.1(b)(6)(B)].”                                She

added that “[t]he investigation and talks with witnesses and the

co-Defendant are ongoing[,] but I can as of now agree that this

[enhancement] does not apply.”

       The next day, on December 13, 2013, Warner signed a plea

agreement with the government in which he agreed to plead guilty

to the charge that he had aided and abetted the theft of a

firearm.      The agreement included the following provision:

       7.     Pursuant to Rule 11(c)(1)(B), the parties agree
              that they will jointly recommend that the Court
              make the following findings and conclusions as to
              the U.S.S.G.:

                                      *       *         *

              d.     The parties agree that the 4-level increase
                     under 2K2.1(b)(6)(B) does not apply.

              e.     The    United States will inform the Court and
                     the    probation office of all facts pertinent
                     to    the sentencing process and will present
                     any   evidence requested by the Court.

The agreement also included a provision by which Warner waived

his right to appeal “whatever sentence [was] imposed,” except to

raise       claims     of      ineffective             assistance     of      counsel      or

prosecutorial misconduct.

       Following       a    plea    colloquy,          the    district   court     accepted

Warner’s      guilty       plea    pursuant       to    the    plea   agreement,     and    a

probation     officer       subsequently        prepared        a   presentence    report.

In   the    presentence       report,     the      probation        officer    recommended

that    the    §     2K2.1(b)(6)(B)       4-level            enhancement      be   applied,
                                              4
concluding         that       Warner       had    used     or    possessed          a    firearm   in

connection with another felony offense -- namely, the 19 counts

of breaking or entering a motor vehicle with which Warner had

been    charged          in    a    North        Carolina       state       court.        With     the

enhancement, the probation officer calculated Warner’s offense

level    to    be    23,       which,      when     combined         with    Warner’s      criminal

history       category         of    II,    resulted       in    a     Guidelines         sentencing

range of 51 to 63 months’ imprisonment.                                The probation officer

noted    that       if    the       district       court     accepted         the       government’s

position, as stated in the plea agreement, that § 2K2.1(b)(6)(B)

did not apply, Warner’s Guidelines range would instead be 33 to

41 months’ imprisonment.

        Warner objected to the presentence report’s recommendation

to   apply     §    2K2.1(b)(6)(B),               arguing       that    the    “enhancement         is

inapplicable         for       two       distinct       reasons;        first,       because     [he]

neither ‘used’ nor ‘possessed’ the firearm, and second, because

there was no ‘connection with another felony offense.’”

        The government filed a response entitled “Objections to the

Presentence Report,” in which it noted that it had agreed with

Warner in his plea agreement that § 2K2.1(b)(6)(B) did not apply

and requested that the district court therefore not apply the

enhancement.              In       the    same     filing,       however,       the      government

proceeded to state that it had revised its position regarding

when certain types of North Carolina felony offenses count as

                                                    5
felonies   for   federal   sentencing     purposes,   and   it   clearly

indicated that, under its new position, the enhancement would

properly apply to Warner.    It stated:

     The probation office correctly notes in paragraph 19
     of the Presentence Investigation Report that in the
     course of the crime of conviction a firearm was
     possessed in connection with another offense, that
     being breaking and entering multiple motor vehicles in
     violation of North Carolina General Statute 14-56, a
     class I felony.    However, at the time that the plea
     agreement was made, the Government’s position on how
     to treat a North Carolina class I offense for purposes
     of United States v. Simmons, 649 F.3d 237 (4th Cir.
     2011), resulted in a finding that 14-56 was not a
     felony for federal purposes because it was not a crime
     punishable by imprisonment in excess of a year as
     applied to this Defendant and his criminal history.
     The Government’s approach to Simmons analysis at the
     time the plea agreement was made treated a North
     Carolina class I offense committed on or after
     December   1,   2011   as   a   felony  punishable  by
     imprisonment in excess of a year, only where the
     defendant was a North Carolina criminal history
     category V or higher.     On June 5, 2013, the date of
     the offense conduct, Warner was a North Carolina
     criminal history category II. Thus, Warner’s criminal
     history was not sufficient to pass Simmons analysis as
     applied at the time of the plea agreement and his
     conduct was not considered “another felony offense”
     for purposes of 2K2.1.

     On December 1, 2011 the North Carolina Justice
     Reinvestment  Act   increased  North   Carolina state
     penalties such that all felonies could be punishable
     by a term of imprisonment exceeding one year. Despite
     these December 1, 2011 changes, concerned that the
     changes may not satisfy the Appellate Courts, the
     Government maintained the conservative position that
     the changes were not a cure to the Simmons issue. As
     of August 4, 2014, the Government has taken the new
     position, in light of United States v. Valdovinos,
     2014 WL 3686104 (4th Cir. July 25, 2014), that the
     December 2011 North Carolina Justice Reinvestment Act
     cured any infirmity in the class H and I North

                                  6
       Carolina state felonies such that these offenses are
       felonies for federal purposes regardless of the
       criminal history category of the offender.

(Emphasis of “felony” or “felonies” in original; other emphasis

added).      The government explained, however, that “[b]ecause [it]

made   its    agreement        with     Warner    prior        to    this    new     official

position on Simmons, [it] [was] not seek[ing] the 2K2.1(b)(6)(B)

enhancement.”            Instead, it “respectfully ask[ed] that the Court

honor the agreement of the parties.”

       Arguing      that      the    government’s         statement         to    the     court

breached the plea agreement, Warner filed a motion for specific

performance of the agreement, requesting that the district court

(1)    declare       the     government    to      be     in    breach       of    the     plea

agreement;         (2)     strike    the   government’s             objection      from     the

docket;     (3)     direct     the     government       to     file    a    new    objection

agreeing      with       defense      counsel’s     arguments          as    to    why     the

enhancement was inapplicable; and (4) transfer Warner’s case to

a different district judge for sentencing.                             Warner explained

that the parties’ agreement that the enhancement does not apply

“was based on the facts of the case, not on any kind of legal

issue involving Simmons or Valdovinos.”

       At    the     sentencing        hearing,     the        district      court       denied

Warner’s motion for specific performance, concluding that the

government        had      “complied    with      the     conditions         of    the    plea

agreement.”         The court thereupon concluded that the enhancement

                                            7
was applicable and therefore that Warner’s advisory Guidelines

range was 51 to 63 months’ imprisonment.                           After hearing from

Warner and his family, the court imposed a downward-variance

sentence of 48 months’ imprisonment.

       From   the    district          court’s       judgment,     Warner      filed    this

appeal, seeking specific performance of his plea agreement and

resentencing        before    a        different       district     judge.         He   also

challenges     two     aspects          of     the     district    court’s        Guidelines

calculations.


                                               II

       Warner contends that the government breached its promise in

the plea agreement to inform the sentencing court “that the 4-

level   increase      under   2K2.1(b)(6)(B)              does    not     apply”    when   it

submitted a filing that informed the court that it no longer

agreed with this position.                   According to Warner, even though the

government “asked the court not to apply the enhancement,” it

nonetheless    indicated          at    the     same    time     that    it   “viewed   that

request as factually and legally wrong,” “mak[ing] clear that

the government would have recommended the 4-level enhancement

but for its agreement with Warner.”                         Warner contends further

that    the   government’s         breach       was     material        because    “[e]mails

between Warner’s counsel and the prosecutor demonstrate[] that




                                                8
the agreement depended on the government’s recommendation that

§ 2K2.1(b)(6)(B) did not apply.”

      The government argues that it agreed to “recommend against

application of [the] four-level increase” and that it did so

“unequivocally      and   consistently.”         It    acknowledges   that   its

discussion of the Simmons issue “provided the district court

with new and relevant legal authority that tended to support

application of the enhancement,” but it contends that it “had a

responsibility to inform the district court of that authority,”

maintaining that, “[a]s an officer of the court, the prosecutor

could not object to the probation officer’s recommendation that

the   enhancement    be   applied    without     grappling    with    the   legal

authority that might support application of the enhancement.”

Finally, the government argues, even if it breached the plea

agreement,   the    breach   would    not   be    material    because   “[b]oth

Warner and the district court recognized the position of the

United States as recommending that the four-level enhancement

under § 2K2.1(b)(6)(B) should not apply to Warner.”

      When interpreting plea agreements, “we draw upon contract

law as a guide to ensure that each party receives the benefit of

the bargain,” and to that end, we “enforce a plea agreement’s

plain language in its ordinary sense.”                United States v. Jordan,

509 F.3d 191, 195 (4th Cir. 2007) (internal quotation marks and

citation omitted).        Although we employ traditional principles of

                                       9
contract law as a guide, we nonetheless give plea agreements

“greater scrutiny than we would apply to a commercial contract”

“[b]ecause a defendant’s fundamental and constitutional rights

are implicated when he is induced to plead guilty by reason of a

plea agreement.”             Id. at 195-96 (internal quotation marks and

citation       omitted).         At      bottom,         “when      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, 404

U.S. at 262.

       In the plea agreement before us, the government agreed that

it would, jointly with the defendant, “recommend that the Court

make     the        following       findings           and      conclusions          as    to    the

U.S.S.G.: . . .            The   parties          agree      that     the    4-level       increase

under 2K2.1(b)(6)(B) does not apply [and] [t]he United States

will    inform       the    Court    .   .    .     of    all    facts       pertinent      to   the

sentencing process.”             (Emphasis added).                  The agreement’s use of

the    verb    “recommend”          in   the       context       of      what     the   government

promised to advise the court is, to be sure, somewhat awkward,

but the substance of the promise that the government made is

clear:         The    government         agreed         to   advise         the    court    of   its

position that U.S.S.G. § 2K2.1(b)(6)(B) does not apply in this

case.



                                                  10
       That the government clearly understood the precise nature

of this promise -- i.e., to represent its position, not simply

to make a recommendation -- is demonstrated by both the email

exchanges leading to the plea agreement and the government’s

filing with the court after execution of the plea agreement.

Before    the   agreement     was   signed,     the   government     acceded   to

Warner’s demand for a stipulation that the enhancement did not

apply, stating that it “[did] not have information that would

implicate [Warner] under [§ 2K2.1(b)(6)(B)]” and that it could

agree with the position that “[the enhancement] does not apply.”

Similarly,      after      execution    of    the     agreement     and   before

sentencing, the government recognized that it had not agreed in

the plea agreement simply to make a recommendation, but that it

had agreed to state its position that the enhancement did not

apply.    The nature of its promise was confirmed when it advised

the court that since signing the agreement, it “ha[d] taken the

new    position”    that    the   enhancement    would   apply,     although   it

urged the court to honor the agreement despite the government’s

“new    position.”         (Emphasis   added).        Thus,    in   giving   this

explanation, the government again recognized that it had agreed

to represent its position on the enhancement, not to recommend

whether    to      apply    the     enhancement.         The    difference     is

significant.



                                        11
     The      government’s         advice          to   a    court   that   an        enhancement

applies    but     that     the    court       should        nonetheless        not    apply    the

enhancement in the particular circumstances of the case, for

whatever reason, is substantively different from a statement by

the government to the court that it holds the position that the

enhancement does not apply.                    On receiving the former advice, the

court     would     feel     free        to        reject      the    advice      as     a     mere

recommendation.           But on receipt of the latter advice, the court

would   not    feel    so    free        to    reject       the    government’s        position,

unless and until it conducted a careful review of the record and

the law and determined that it disagreed with the government on

the applicability of the enhancement.

     It is true, as the government argues, that even as the

government       announced        its    “new        position”       on   the    enhancement’s

applicability        to     Warner,           it     repeatedly       requested        that     the

sentencing court “not apply the enhancement” on the ground that

the court should “honor the agreement of the parties.”                                   But the

government’s       plea     agreement              obligation      was    more    than       simply

recommending that the court not impose the enhancement; it had

promised      to    advise         the        court     of     its    position         that     the

enhancement        “does     not    apply.”              And      thus,   even        though    the

government did recommend to the district court that it should

not apply the enhancement, the government breached its promise

to tell the court that the enhancement did not apply.

                                                   12
       We also conclude that the government’s breach was material.

“Central to [the] determination of the materiality of a breach

is ‘the extent to which the injured party will be deprived of

the benefit which he reasonably expected.’”                          United States v.

Scruggs,     356       F.3d    539,   543-44        (4th      Cir.       2004)    (quoting

Restatement (Second) of Contracts § 241 (1981)).                          In this case,

the record amply demonstrates that the government’s willingness

to agree that § 2K2.1(b)(6)(B) was inapplicable was critical to

Warner’s acceptance of the plea agreement, as manifested by the

negotiations.          The government nonetheless argues that any breach

cannot be material because “[b]oth Warner and the district court

recognized the position of the United States as recommending

that   the   four-level        enhancement      .    .    .     should    not     apply   to

Warner.”         But    this   argument    again     overlooks          the   distinction

between requesting that the court not impose the enhancement

because of the parties’ plea agreement, as opposed to jointly

advising the court of the parties’ position that the enhancement

was inapplicable.

       We therefore conclude that the government breached its plea

agreement with Warner, albeit with a pure motive, and that the

breach     was    material,      leaving     open        only     the     issue    of     the

appropriate remedy.

       When a court of appeals finds a material breach of a plea

agreement and the defendant seeks to withdraw his guilty plea,

                                           13
the court should remand the case to the district court to assess

whether,       in     the     circumstances         of    the     case,     it     would     be

appropriate         to    grant     that    relief       or    the    lesser       relief    of

specific performance of the agreement.                        See Santobello, 404 U.S.

at   263.           If,   however,      the      defendant        seeks     only     specific

performance,         then     the   court     should      honor      that   election,        see

United States v. Brown, 500 F.2d 375, 378 (4th Cir. 1974), and

remand with direction that the defendant “be resentenced by a

different judge,” Santobello, 404 U.S. at 263.

     In     this      case,    Warner      has     unequivocally       elected       to     have

specific performance.               Accordingly, we vacate Warner’s sentence

and remand the case for resentencing before a different district

judge.

     Because of Warner’s election for specific performance, we

must,     of    course,       also    enforce       the       provision     in     his      plea

agreement by which he waived his appeal rights.                             Therefore, we

do not reach his challenges to the district court’s calculations

under the Sentencing Guidelines.



                                              SENTENCE VACATED AND CASE REMANDED




                                              14
