                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       March 21, 2011
                                                                    Elisabeth A. Shumaker
                     UNITED STATES COURT OF APPEALS                     Clerk of Court

                                  TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                               No. 09-3222
                                                (D. Ct. No. 2:07-CR-20167-KHV-7)
 BOYTINA LOCKE,                                               (D. Kan.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and TYMKOVICH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

       Defendant-appellant Boytina Locke entered into a plea agreement and

pleaded guilty to conspiracy to manufacture, to posses with intent to distribute,

and to distribute fifty grams or more of cocaine base and to possess with intent to



       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
distribute and to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 846, 841(b)(1)(A)(ii), (b)(1)(A)(iii). He was sentenced to 360 months’

imprisonment. On appeal, he contends that the government breached the plea

agreement. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we VACATE

and REMAND.

                                 I. BACKGROUND

      Mr. Locke was indicted as part of a conspiracy to distribute crack cocaine

throughout the Kansas City, Kansas metropolitan area. Thereafter, he entered

into a plea agreement wherein he agreed to plead guilty to the conspiracy and to

waive any right to appeal. 1 In exchange, the government promised to dismiss all

other charges against him and “to request a sentence within the guideline range

determined to be appropriate by the U.S. Probation Department and as approved

by the Court.”

      Additionally, the government agreed to recommend that Mr. Locke receive

a two-level reduction for acceptance of responsibility under § 3E1.1(a) of the

United States Sentencing Guidelines Manual (“U.S.S.G.”). The government also

agreed that it would move for an additional one-level reduction under § 3E1.1(b)

because Mr. Locke “timely notified the government of his intention to enter a plea



      1
       That waiver provision, however, does not apply in this case. See United States v.
Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008) (“[A]n appellate waiver is not
enforceable if the Government breaches its obligations under the plea agreement.”).

                                          -2-
of guilty.” 2 The government’s obligation to seek these reductions was expressly

made contingent, however, upon Mr. Locke’s “continuing manifestation of

acceptance of responsibility as determined by the United States.” Moreover, the

plea agreement stated:

       If [Mr. Locke] denies or gives conflicting statements as to his
       involvement, falsely denies or frivolously contests relevant conduct
       that the court determines to be true, willfully obstructs or impedes
       the administration of justice as defined in U.S.S.G. § 3C1.1 (or
       willfully attempts to do so), or engages in additional criminal
       conduct, the United States reserves the right to withdraw all of its
       recommendations without breaching this agreement.

After conducting a Rule 11 colloquy, the district court accepted the plea

agreement.

       The United States Probation Office prepared an initial presentence report

(“PSR”). The PSR held Mr. Locke responsible for 20.73 kilograms of cocaine,

plus additional quantities of other drugs, resulting in a base offense level of 34.

The PSR also recommended a two-level enhancement under § 2D1.1(b)(1) for

possession of a firearm and a four-level enhancement under § 3B1.1(a) for Mr.

Locke’s role in the offense, for an adjusted offense level of 40. After reducing

the offense level three levels pursuant to the plea agreement, and determining that

Mr. Locke’s criminal history category was V, the PSR author reached an advisory

guidelines range of 324 to 405 months’ imprisonment.

       2
        Although the two-level reduction under subsection (a) lies within the discretion of
the district court, “[a]n adjustment under subsection (b) may only be granted upon a
formal motion by the Government at the time of sentencing.” U.S.S.G. § 3E1.1. cmt. n.6.

                                           -3-
      Mr. Locke filed a sentencing memorandum, raising several objections to the

initial version of the PSR. Of note in this appeal, Mr. Locke challenged drug

transactions that were attributed to him in the PSR, claiming that the quantities

were excessive. Mr. Locke also challenged the factual basis for the two-level

firearm enhancement and the four-level enhancement for his role in the offense.

The government filed a response opposing Mr. Locke’s objections and arguing

that Mr Locke should lose the three-level reduction for acceptance of

responsibility “because his objections are clearly a false denial and an attempt to

frivolously contest sentencing matters.”

      At the sentencing hearing, the government again articulated its position that

Mr. Locke’s objections to the PSR were frivolous, stating that it would not move

for the one-level reduction for the timeliness of Mr. Locke’s acceptance of

responsibility and that it opposed the two-level reduction. The district court then

heard testimony from an FBI agent and Mr. Locke himself concerning the drug

quantities attributed to him as relevant conduct and argument from both parties

concerning the two enhancements. The court resolved all of Mr. Locke’s

objections in favor of the government and in accordance with the PSR. The

district court then determined Mr. Locke’s total offense level to be 37, as

recommended in the PSR.

      The government objected, noting that it had withdrawn the additional one-

level reduction for timely acceptance of responsibility, resulting in an offense

                                           -4-
level of 38. When the court asked whether the government had a “recognized

ground for withdrawing” the extra level, the government responded that it did.

The government then recited the language from the plea agreement that “if the

defendant . . . falsely denies or frivolously contests relevant conduct that the

Court determines to be true, then the United States reserves the right to withdraw

its recommendation without breaching the agreement.” The government said its

withdrawal of the additional level was grounded on the district court’s rulings on

Mr. Locke’s objections to the PSR.

      Mr. Locke argued against allowing the government to withdraw the one-

level reduction. He noted that the plea agreement did not require him to forego

all objections to the PSR, and “[t]he fact that the government disagrees with them,

and the fact that the Court ruled against him [] doesn’t make it frivolous.”

Although it agreed with Mr. Locke, the court refused to apply the one-level

reduction “because the government has to make that motion” and had not done so.

The district judge stated, however, that he would take the situation into

consideration when fashioning a sentence “because I don’t think [Mr. Locke’s]

testimony was frivolous or intentionally false.” The district court ultimately

sentenced Mr. Locke to 360 months’ imprisonment, the bottom of the applicable

guidelines range. Mr. Locke now appeals, arguing that the government breached

the plea agreement.




                                         -5-
                                II. DISCUSSION

      “Where the Government obtains a guilty plea which is predicated in any

significant degree on a promise or agreement with the U.S. Attorney, such

promise or agreement must be fulfilled to maintain the integrity of the plea.”

United States v. Villa-Vazquez, 536 F.3d 1189, 1196 (10th Cir. 2008) (quotations

omitted). “General principles of contract law define the government’s obligations

under the agreement, looking to the express language and construing any

ambiguities against the government as the drafter of the agreement.” United

States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003). Generally, whether the

government has breached a plea agreement is a question of law which we review

de novo. See United States v. Werner, 317 F.3d 1168, 1169 (10th Cir. 2003).

The Supreme Court has recently clarified, however, that plain-error review

applies when the defendant fails to object at the time of the alleged breach. See

Puckett v. United States, – U.S. –, 129 S. Ct. 1423, 1429 (2009). Resolving

whether Mr. Locke adequately objected to the alleged breach, however, is not

necessary in this appeal because the government admits to the breach, see

Guzman, 318 F.3d at 1196, and also concedes that the district court plainly erred

in sentencing him in a manner inconsistent with the terms of the plea agreement.

      We therefore turn to the question of remedy. Mr. Locke requests that he be

allowed to withdraw his guilty plea and stand trial. “When the government has

breached a plea agreement, [however,] it is generally preferable to remand the

                                        -6-
case to the district court for its determination as to whether defendant should be

resentenced by a different judge or should be allowed to withdraw his guilty

plea.” United States v. Brye, 146 F.3d 1207, 1213 (10th Cir. 1998). But “[w]hen

the government’s breach is particularly egregious or intentional, we will allow

[the] defendant to withdraw the guilty plea.” Id.

      Mr. Locke alleges that the government’s breach was egregious and

intentional for two reasons: (1) “a pattern of [mis]conduct by Kansas [federal]

prosecutors”; and (2) the “obvious failure of deterrence” in “a slew of reversals

for breaching plea agreements.” He argues that because the Assistant United

States Attorneys in Kansas continue to breach plea agreements despite the

reversals, a “stronger remedy is in order,” presumably allowing Mr. Locke to

withdraw his plea. We disagree. Nothing in the record suggests that the

government intentionally breached the plea agreement, nor is the breach in this

case egregious. The district court is in a better position to determine the

appropriate remedy in this case. Accordingly, we remand to the district court for

a determination as to whether Mr. Locke should be resentenced by a different

judge or should be allowed to withdraw his guilty plea.




                                         -7-
                            III. CONCLUSION

     For the foregoing reasons, we VACATE Mr. Locke’s sentence and

REMAND for proceedings consistent with this opinion.



                                   ENTERED FOR THE COURT,



                                   Deanell Reece Tacha
                                   Senior Circuit Judge




                                    -8-
