187 F.3d 1129 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MARK WESLEY JOHNSON,Defendant-Appellant.
No. 98-30297
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted July 13, 1999Filed August 16, 1999

Mark Bennett Weintraub, Assistant Federal Public Defender,  Eugene, Oregon, for the defendant-appellant.
William E. Fitzgerald, Assistant United States Attorney,  Eugene, Oregon, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon  Ann Aiken, District Judge, Presiding. D.C. No. CR-98-60022-AA.
Before: Betty B. Fletcher, Warren J. Ferguson, and A. Wallace Tashima, Circuit Judges.
Opinion by Judge Ferguson; Partial Concurrence and  Partial Dissent by Judge Tashima
OPINION
FERGUSON, Circuit Judge:


1
Mark Johnson was sentenced to a term of 71 months pursuant to a guilty plea for possession of a firearm by a prohibited  person in violation of 18 U.S.C. S 922(g)(9). On appeal, we  vacate his sentence and remand for re-sentencing before a different district court judge.

I. BACKGROUND

2
On March 20, 1997, Kelly Johnson, Mark Johnson's wife,  came home from work and parked her car in the driveway of  the couple's apartment complex. Because her husband had  called her earlier in the day accusing her of having an affair,  Kelly sat in her car afraid to go inside. Seeing Kelly in her  car, Mark came out of the apartment and started yelling at her.  When Kelly tried to drive away, Mark snatched the keys from  the ignition. He then reached inside the car, grabbed Kelly by  the face, and shook her head violently. Kelly was able to jump  out of the car and run to a neighbor's apartment. There, she  called 911 and told the operator that her husband was going  to kill her.


3
Agitated and partially drunk, Mark went back to the couple's apartment.  There, he retrieved the Norinco SKS  machine gun he had stored in his apartment and went outside.  Once outside, he fired a "burst of bullets" into the ground  beside the apartment building.


4
When the police arrived on the scene, they found Mark  wandering through the parking lot. Kelly spoke with the officers and gave them permission to search the apartment. The  officers found the machine gun and additional ammunition in  the apartment.  After being advised of his constitutional  rights, Mark admitted that the gun was his, that he had paid  someone to modify it for him to fire in fully automatic mode,  and that he had fired the gun outside the complex.


5
On February 18, 1998, a District of Oregon grand jury  returned an indictment charging Johnson with unlawful possession of a firearm following a misdemeanor domestic violence conviction1 in violation of 18 U.S.C. S 922(g)(9) and  with unlawful possession of a machine gun in violation of 18  U.S.C. S 922(o)(1). On August 3, 1998, Johnson pleaded  guilty to the first count pursuant to a plea agreement with the  government; in return, the government promised to recommend the low end of the applicable sentencing range and to  drop the second count of the indictment.


6
Johnson appeared before the district court on October 15,  1998, for his sentencing hearing. At the hearing, the govern- ment asked for two sentencing enhancements, as set forth in  the plea agreement. First, the government asked for a fourlevel enhancement based on U.S.S.G. S 2K2.1(b)(5) because  Johnson used the firearm in connection with "another felony  offense." Johnson claimed that his conduct did not fall within  that section, but the district court agreed with the government,  finding that Johnson used the firearm in connection with the  Oregon offense of unlawful use of a weapon. Second, the  government asked for a two level enhancement based on  U.S.S.G. S 3A1.3 because a victim was physically restrained  "in the course of the offense." Johnson objected to this  enhancement as well, but the district court found that Johnson  had restrained Kelly four days earlier when he held her hostage in the apartment without allowing her to leave and also  on the day of the gun incident when he took her car keys.


7
The district court's findings resulted in a net offense level  of 21, corresponding to a sentence range of 57 to 71 months.  Although the presentence report filed by the probation office  recommended sentencing at the top of the range (71 months),  the government agreed in its plea agreement to recommend  Johnson be sentenced at the low end of the sentencing range.  The district court agreed with the probation officer and sentenced Johnson to 71 months incarceration. Johnson is currently serving that sentence.

II. DISCUSSION

8
A. U.S.S.G. S 2K2.1(b)(5): Another Felony Offense  Enhancement


9
Under U.S.S.G. S 2K2.1(b)(5), the district court applied a  four-level enhancement for committing "another felony  offense" based on its finding that Johnson had committed the  Oregon felony of unlawful use of a weapon. We review the  district court's application of the Sentencing Guidelines to the  facts of a particular case for an abuse of discretion, United  States v. Aguilar-Ayala, 120 F.3d 176, 177-78 (9th Cir. 1997),  and hold that the district court abused its discretion in concluding that Johnson had committed the Oregon offense of  unlawful use of a weapon.


10
U.S.S.G. S 2K2.1(b)(5) provides as follows:"If the defendant used or possessed any firearm or ammunition in connection with another felony offense . . . increase by 4 levels."  U.S.S.G. S 2K2.1(b)(5). Application note 7 states that  " `felony offense' . . . means any offense (federal, state, or  local) punishable by imprisonment for a term exceeding one  year, whether or not a criminal charge was brought, or conviction obtained." Application note 18 states that" `another fel- ony offense' . . . refer[s] to offenses other than explosives or  firearms possession or trafficking offenses."


11
The district court here found that Johnson used the weapon  in connection with the Oregon felony of unlawful use of a  weapon, Or. Rev. Stat. S 166.220(1), which states in full:


12
A person commits the crime of unlawful use of a weapon if the person: (a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015; or (b) Intentionally discharges a firearm, blowgun, bow and arrow, crossbow, or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure, or vehicle within the range of the weapon without having legal author ity for such discharge.


13
The court did not specify upon which subsection of  S 166.220(1) it based the enhancement.


14
Regardless of which subsection ofS 166.220(1) the district court based the enhancement, the court abused its discretion in finding that Johnson's conduct fell within the terms of  the statute. To have violated subsection (a) ofS 166.220(1),  Johnson must have attempted to use his firearm "against  another" or have had the intent to use his weapon against another.2 However, it is undisputed here that Johnson fired his  gun into the ground and did not attempt to use his weapon  against another person. In fact, none of the evidence presented  to the district court showed even an intent to use the weapon  against another person. The government recognized that much  in its brief in this appeal, in which it argued only that Johnson  violated subsection (b) of S 166.220(1).


15
That argument, though, is incorrect. Although the record  supports a conclusion that Johnson intentionally fired his  weapon, as subsection (b) requires, Johnson did not fall  within a different part of subsection (b). The statute requires  that the weapon be fired "at or in the direction of any person,  building, structure or vehicle within the range of the weapon." Inexplicably, the district court omitted that part of the statute  in its analysis.3


16
Nevertheless, it is clear that Johnson did not fire his  weapon "in the direction of any person, building, structure or  vehicle" -- as required by S 166.220(1)(b). See Oregon v.  Wimberly, 952 P.2d 1042, 1044 (Or. Ct. App. 1998) (noting that the Oregon district attorney acknowledges that firing the  weapon "at or in the direction of a person, building, structure,  or vehicle" is a separate element of S 166.220(1)(b)). All  Johnson did in this case was fire his weapon into the ground.  According to the presentence report, a child was nearby, but  there was absolutely no allegation that Johnson fired his  weapon "at or in the direction" of the child. At oral argument,  the government admitted as much, stating that there was no  evidence that Johnson fired his weapon at a person or building.


17
Because Johnson did not use his weapon against  another person or have the intent to use it against another person, and he did not fire his weapon toward a person, building,  structure, or vehicle, Johnson plainly did not commit a felony  under S 166.220(1) - subsection (a) or (b). In concluding that  Johnson did unlawfully use the weapon under S 166.220(1),  the district court abused its discretion by granting the fourlevel enhancement under U.S.S.G. S 2K2.1(b)(5) for using a  weapon in connection with another felony offense.


18
B. U.S.S.G. S 3A1.3: Restraint of Victim Enhancement


19
Along with the four-level enhancement discussed above,  the district court interpreted U.S.S.G. S 3A1.3 to apply to Johnson and granted the government's request for a two-level  enhancement. We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Bailey,  139 F.3d 667, 667 (9th Cir. 1998). Under that standard, we  conclude that the district court properly granted the government's application for a two-level enhancement based on  restraint of victim.


20
U.S.S.G. S 3A1.3 provides for a two level enhancement  "[i]f a victim was physically restrained in the course of the  offense." Johnson admitted in his reply brief that he restrained  Kelly on March 20 when he held her in her car when she  returned home from work. See Reply Br. at 10 ("The March  20 incident in the parking lot of Mr. Johnson's apartment  building involved the brief restraint of Kelly Johnson while  she was seated in her own car.") (emphasis added). In addition, Johnson testified at the sentencing hearing that he  restrained Kelly: "I got to grab the keys out of her car so she  doesn't leave . . . ." However, he claims that his conduct was  not "in the course of the offense" of possession of a firearm  by a prohibited person. That phrase -- "in the course of the  offense" -- is not defined in the Sentencing Guidelines or in  Ninth Circuit case law.


21
Only the Sixth Circuit has looked at this specific part of  S 3A1.3. In United States v. Cross, 121 F.3d 234 (6th Cir.  1997), the court held that whether an act of restraint occurred  "in the course of the offense" under S 3A1.3 should be analyzed by looking to whether the act of restraint could be considered "relevant conduct" under U.S.S.G.S 1B1.3. Id. at  238-39. We now follow the Sixth Circuit's lead on this issue  and look to S 1B1.3 to determine if the acts of physical  restraint here are "relevant conduct" and thus took place "in  the course of the offense." Section 1B1.3 of the Sentencing  Guidelines provides as follows:


22
Unless otherwise specified . . . (iv) adjustments in Chapter Three, shall be determined on the basis of the following: (1)(A) all acts and omissions commit ted, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.


23
U.S.S.G. S 1B1.3(a)(1)(A) (emphasis added).4


24
Whether either of the two incidents of physical restraint  falls within S 1B1.3(a)(1)(A) is the critical inquiry here. Of  the three temporal options within the last part of the guideline  -- occurring during the offense, in preparation for the offense, or in the course of evading responsibility or detection  -- only the first has relevance to this case. Thus, if Johnson  restrained Kelly while he engaged in the offense of possession  on March 20, the enhancement was proper.


25
Resolution of this matter requires an understanding of  when possession occurs. Previously, this Court has defined  "possession" as follows: "The element of possession may be  satisfied by proof of constructive or joint possession. To  establish constructive possession, the government must produce evidence showing ownership, dominion, or control over  the contraband itself or the premises or vehicle in which contraband is concealed." United States v. Shirley, 884 F.2d  1130, 1134 (9th Cir. 1989) (internal citations and quotations  omitted) (emphasis added). It is undeniable that when Johnson restrained Kelly at her car on March 20 he had dominion  over his apartment where the gun was stored. Because the legal definition of possession includes having dominion over  the premises in which the contraband is concealed, Johnson  possessed the weapon while restraining Kelly at her car. The  district court thus properly applied the two-level enhancement  for restraint of victim to this case.

C. Breach of Plea Agreement

26
The district court sentenced Johnson to the high end of  the applicable sentencing range. Johnson claims that the sentence resulted from a breach of the prosecutor's end of the  plea agreement. The Ninth Circuit has been inconsistent in its  standards for reviewing a claim that the government has  breached a plea agreement. Compare United States v.  Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (de novo standard), with United States v. Salemo, 81 F.3d 1453, 1460 (9th  Cir. 1996) (clearly erroneous standard). Although those conflicting standards may bring about different results in some  cases, we conclude that under either standard the government  has breached the plea agreement in this case in its use of a  victim impact statement to influence the judge to deviate from  the low end of the applicable sentencing range.


27
Johnson claims the government breached the plea agreement in three different ways. Two of those claims are unconvincing. Johnson first claims that, by arguing to the district  court that Johnson used his weapon in connection with the  Oregon crimes of kidnaping and coercion, the government  recommended a basis for the four-level enhancement that dif- fered from the basis included in the plea agreement. Plea  agreements are contracts, and the government is held to the  literal terms of the agreement. United States v. Baker, 25 F.3d  1453, 1458 (9th Cir. 1994). The plea agreement here states  that the government would recommend a four-level enhancement for possession of a firearm in connection with another  "felony offense, to wit: unlawful use of a weapon, in violation  of Oregon Revised Statutes, S 166.220 . . . . The Government  promises not to recommend any other enhancements or  departures." The government held to that promise by recommending only the four-level "other felony offense " enhancement and the two-level "restraint of victim" enhancement.  Although it recommended two alternative bases  for the fourlevel enhancement, it did not recommend a different  enhancement. In doing so, it complied with the literal terms  of the agreement.


28
Johnson's second contention is that the prosecutor's actual  recommendation to the judge did not comply with the provision of the plea agreement requiring the government to recommend a sentence at the low-end of the sentencing range.  The plea agreement states that "the Government will recommend that Mr. Johnson be sentenced at the low end of the  applicable sentencing guideline range." The prosecutor's recommendation to the judge was as follows: "I am bound under  the plea agreement not to recommend more than the low end  of the sentencing range, and I will abide by that plea  agreement."


29
When the government agrees to make a certain recommen- dation to the sentencing court, it is bound by the agreement  to make that particular recommendation. United States v.  Myers, 32 F.3d 411, 413 (9th Cir. 1994). However, unless  specifically required in the agreement, the government need  not make the agreed-upon recommendation enthusiastically.  United States v. Benchimol, 471 U.S. 453, 455 (1985). Here,  the prosecutor made the agreed-upon recommendation, albeit  unenthusiastically, because by negative implication he told  the court that he recommends a low-end sentence. He did not  fail to make any recommendation, as was the error in Myers,  32 F.3d at 413, nor did he contradict his recommendation with  statements indicating a preference for a harsher sentence, as  was the error in United States v. Brown, 500 F.2d 375, 377  (4th Cir. 1974).


30
However, Johnson's third claim of breach succeeds where  the other two failed. At the sentencing hearing, the prosecutor  introduced the victim impact statement of Julie McDonald,  the victim of Johnson's 1994 domestic violence crime. Johnson objected to the relevance of the testimony, but the court  allowed it, claiming that it might be relevant to the enhancements or to any departure. McDonald then read her statement  condemning Johnson. Her statement included the following:  "[T]here is a monster that lives inside of a man named Mark  Wesley Johnson. He's mean, ugly, scary, controlling,  manipulating."


31
We see no way to view the introduction of McDonald's  statement other than as an attempt by the prosecutor to influ- ence the court to give a higher sentence than the prosecutor's  recommendation. The statement had nothing to do with the  crime to which Johnson pleaded guilty: Johnson pleaded  guilty to the crime of possessing a weapon by a prohibited  person, and McDonald, although part of the crime that made  Johnson a prohibited person, was not a part of the possession  offense. Under U.S.S.G. S 1B1.3, there is no possible way her  statement could be considered relevant to any enhancement.  Being bound to sentence Johnson between 57 and 71 months,  the district court's only possible use for McDonald's damning  statement was as a reason to sentence Johnson at the high end  of the sentencing range.5 By introducing McDonald's statement solely for the purpose of influencing the district court to  sentence Johnson more harshly, the prosecutor breached the  government's agreement to recommend the low end of the  sentencing range.6


32
Although the district court stated at the sentencing hearing that it was prepared to sentence Johnson to the high end  of the sentencing range even before the actual sentencing hearing took place, "[t]he harmless error rule does not apply  to the law of contractual plea agreements." Myers, 32 F.3d at  413. Therefore, we vacate Johnson's sentence because of the  government's failure to abide by the plea agreement. Because  of the government's breach, we are required to remand for resentencing before a different judge. See Santobello v. New  York, 404 U.S. 257, 263 (1971); United States v. Camper, 66  F.3d 229, 233 (9th Cir. 1995).7

III. CONCLUSION

33
The district court's two-level enhancement for restraint of  victim is affirmed. However, because the enhancement for use  of the weapon in conjunction with another felony offense was  not supported by the facts and because the prosecutor  breached the plea agreement, Johnson's sentence is vacated  and remanded for re-sentencing before a different district  court judge in accordance with this opinion.


34
AFFIRMED in part, VACATED and REMANDED in part.



Notes:


1
 In 1994, Johnson had been convicted of a Montana misdemeanor  domestic violence offense as a result of punching and kicking his thencommon law spouse, Julie McDonald.


2
 Moreover, the subsection (a) offense of possession "with intent to use  unlawfully against another" is probably excepted from the S 2K2.1(b)(5)  enhancement because it is a "possession" offense. See U.S.S.G. S 2K2.1  application note 18.


3
 The government used ellipses to leave this decisive part of the statute  out of its brief. Such use of ellipses to omit a relevant section of the Oregon statute is improper. Use of ellipses to excise relevant and decisive sec- tions of the statute in a way that benefits the government's case is looked  upon with great disfavor.


4
 The other sections of S 1B1.3 do not apply to this case:  S 1B1.3(a)(1)(B) applies to "jointly undertaken criminal activity";  S 1B1.3(a)(2) applies to offenses for which the Guidelines provide for  "grouping of multiple counts"; and S 1B1.3(a)(3) applies to all "harm"  from the acts of the defendant specified in S 1B1.3(a)(1) and  S 1B1.3(a)(2).


5
 18 U.S.C. S 3661 allows the district court to consider any information  relating to the defendant's "background, character, and conduct . . . for the  purpose of imposing an appropriate sentence."


6
 Of course, if there had been no plea agreement, the statement would  not have been improper.


7
 We remand to a different judge for re-sentencing because the case law  requires us to do so. We intend no criticism of the district judge by this  action, and none should be inferred.



35
TASHIMA, Circuit Judge, concurring in part and dissenting  in part:


36
I concur in all of the majority opinion, except Part II.B.  Because I cannot agree, however, that Johnson's conduct  amounted to "physical restraint" under U.S.S.G. S 3A1.3, or  that he has conceded the point,1 I respectfully dissent from  Part II.B.


37
The restraining conduct here consisted of Johnson grabbing  the keys to Kelly Johnson's car as she sat in her car in the  couple's driveway. Kelly "escaped" this restraint by jumping  out of her car. The Guidelines define "physically restrained"  to mean "the forcible restraint of the victim such as by being tied, bound, or locked up." U.S.S.G. S 1B1.1 Application  Note 1(i).


38
I submit that taking the keys to a car is not "physical  restraint," as that term is defined in the Guidelines. Kelly  jumped out of the car and fled immediately after Johnson  grabbed the keys. Given the Guidelines' definition, which  requires a "forcible restraint of the victim such as by being  tied, bound, or locked up," some use of force resulting in the  physical or bodily restraint of the person is required to qualify  for the enhancement. No use of force (or even the threat of  force) was present here. The cases which have upheld application of this enhancement confirm that some use of force and  resulting physical, bodily restraint is required. See, e.g.,  United States v. Roberts, 898 F.2d 1465, 1470 (10th Cir.  1990) ( victim held around neck at knife point); United States  v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989) (victim physically prevented from leaving room in which defendant had  placed a pipe bomb).


39
For the foregoing reasons, I would hold that application of  the S 3A1.3 victim restraint enhancement was error.



Notes:


1
  The majority holds that Johnson has conceded that a "physical  restraint" was involved. See Maj. op. at 9210 ("Johnson admitted in his  reply brief that he restrained Kelly on March 20 when he held her in her  car when she returned home from work."). Because of this assumption, the majority does not reach the question of whether Johnson's conduct  amounted to "physically restraining" Kelly, within the meaning of  U.S.S.G. SS 1B1.1 and 3A1.3. I read appellant's arguments differently and  do not agree that Johnson has admitted that his conduct amounted to a  "physical restraint," within the meaning of the Guidelines. See, e.g.,  Appellant's Op. Br. at 31 ("Immediately afterward, she jumped out of the  car and ran away; thus, she [Kelly] was not restrained."). I thus reach the  issue of whether a "physical restraint" was involved.


