                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1212
                       ___________________________

                            United States of America

                       lllllllllllllllllllllPlaintiff - Appellee

                                          v.

             Edward Lee Raifsnider, also known as Larry E. Killion

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                   Appeal from United States District Court
          for the Western District of Missouri - Southwestern Division
                                 ____________

                         Submitted: December 14, 2018
                           Filed: February 14, 2019
                                  [Published]
                                ____________

Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
                             ____________

PER CURIAM.

      Edward L. Raifsnider appeals the sentence imposed following his successful
motion under 28 U.S.C. § 2255 on the ground that the sentence is substantively
unreasonable. The Government asserts Raifsnider’s appeal is barred by the appeal
waiver in his plea agreement. We enforce the waiver and accordingly dismiss this
appeal.
      “When reviewing a purported waiver, we must confirm that the appeal falls
within the scope of the waiver and that both the waiver and plea agreement were
entered into knowingly and voluntarily.” United States v. Andis, 333 F.3d 886,
889–90 (8th Cir. 2003) (en banc). We must also determine that enforcing the waiver
would not “result in a miscarriage of justice.” Id. at 890.

        Raifsnider does not challenge the waiver on any of those grounds, instead
arguing that the appeal waiver is unenforceable due to the Government’s alleged
breach of the plea agreement at sentencing.1 This court has held that an appeal waiver
is unenforceable when the Government breaches the plea agreement. See United
States v. Sayles, 754 F.3d 564, 568 (8th Cir. 2014). When a breach is raised for the
first time on appeal, this court reviews the issue for plain error. Id. If this court finds
an error, then it must also assess whether there is a reasonable probability the
defendant would have received a more favorable sentence but for the breach. Id.

      Raifsnider’s argument is unusual because he asserts a breach of the spirit of the
agreement rather than the letter of the agreement. He concedes that the Government
technically recommended a Guidelines sentence to the sentencing court. Then, he
argues the Government effectively recommended an alternative sentence by strongly
suggesting the district court should not follow its formal recommendation.

      Raifsnider cites no authority showing a violation of the spirit of a plea
agreement is enough to find a breach. The case Raifsnider relies on involved the
Government openly advocating upward departure from the Guidelines on the tenuous
theory that the Government only agreed to recommend a sentence within its


      1
       We assume without deciding that Raifsnider did not waive this issue. The
Government cites no case where we have required a defendant to raise or assert an
argument about an appeal waiver before the Government sought to enforce the appeal
waiver, and we need not decide whether to impose such a requirement now because
it would not affect the outcome in this case.

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calculation of the Guidelines rather than the district court’s calculation. United States
v. Van Horn, 976 F.2d 1180, 1183 (8th Cir. 1992). Van Horn is distinguishable
because there the Government openly recommended a departure. See id. Here,
Raifsnider concedes that no explicit request occurred. We do not suggest the
Government can never breach a plea agreement by implicitly recommending a
different sentence than the one it is bound to recommend by the agreement, but we do
not believe this line has been crossed here.

       More importantly, there is also no indication that Raifsnider would have
received a more favorable sentence but for the purported breach. The district court
based its sentencing decision primarily on reviewing the presentence investigation
report and the numerous fraud crimes in Raifsnider’s past. There is no indication that
any remarks from the Government were the but-for cause of the district court’s
sentencing decision.

      Accordingly, under plain error review, any actionable Government breach here
would not relieve Raifsnider of the appeal waiver because he has not shown it is
reasonably probable that he would have received a more favorable sentence but for
the purported breach. We enforce the waiver and grant the motion to dismiss this
appeal.
                      ______________________________




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