     Case: 12-20542   Document: 00512572430     Page: 1   Date Filed: 03/25/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit


                                 No. 12-20542                     FILED
                                                                 March 25, 2014

                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA                                              Clerk

                                          Plaintiff - Appellee

v.

CHRISTOPHER PURSER,

                                          Defendant - Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Christopher Purser pled guilty to a charge of conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1349 and appeals his sentence on several
grounds. The Government contends that he is barred from doing so because of
an appeal waiver contained within his plea agreement. We enforce the appeal
waiver and dismiss the appeal.
                                      I
      Christopher Purser was indicted for several finance-related crimes and
ultimately pled guilty to Count One, which charged him with conspiracy to
commit wire fraud in violation of 18 U.S.C. § 1349. As part of his plea
agreement, Purser agreed “to waive the right to appeal the sentence imposed or
the manner in which it was determined.” However, he reserved the right to
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appeal a sentence above the statutory maximum or one resulting from either an
upward departure or upward variance. In the plea agreement, he acknowledged
that the district court had not yet determined his sentence, that his plea was not
induced by any estimates of his possible sentencing range, and that the
Government had not made “any promise or representation” concerning the
sentence that he would receive.
      In exchange, the Government agreed to (1) move to dismiss the remaining
counts of the indictment; (2) not oppose Purser’s request for a 2-level downward
adjustment for acceptance of responsibility;1 (3) request, if appropriate, an
additional 1-level downward adjustment;2 (4) not seek an upward departure or
variance, and (5) recommend a sentence at the “low end of the Sentencing
Guidelines.” Finally, the Government agreed to the following conditions in
Paragraph 13(f):
                The United States and the defendant will recommend
                to the Court and the United States Probation office that
                the following aspects of U.S.S.G. § 2B1.1 should apply:
                1.     Base level offense is 7, as per U.S.S.G.
                       § 2B1.1(a)(1);
                2.     The Specific Offense Characteristic of
                       § 2B1.1(b)(1)(J) applies;
                3.     The Specific Offense Characteristic of
                       § 2B1.1(b)(2)(B) applies;
                4.     The Specific Offense Characteristic of
                       § 2B1.1(b)(8)(C) applies; and
                5.     The Specific Offense Characteristic of
                       § 2B1.1(b)(9) applies.

But the Government specifically reserved, inter alia, its right to “set forth or
dispute sentencing factors or facts material to sentencing.”




      1
          See U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (2011).
      2
          Id. § 3E1.1(b).

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      The original PSR was made available on April 24, 2012. The original PSR
had a total offense level of 37. The offense level was calculated using the base
offense level of 7;3 increased by 18 levels because the loss exceeded $2,500,000;4
increased by 4 levels because there were more than 50, but less than 250,
victims;5 increased by 2 levels because the offense involved a violation of a prior
judicial or administrative order;6 increased by 2 levels because the scheme was
relocated to another jurisdiction and partly committed outside the United
States;7 increased by 2 levels because Purser abused a position of trust;8 and
increased by 2 levels for obstruction of justice.9 Combined with Purser’s criminal
history category of III, this yielded a Guidelines range of 262–327 months.
      The Government initially objected that Purser should not have received
a 4-level increase under § 2B1.1(b)(2)(B), but rather a 6-level increase under
§ 2B1.1(b)(2)(C), because the offense involved 250 or more victims. The
Government subsequently withdrew this objection, noting that as part of the
plea agreement it had agreed that § 2B1.1(b)(2)(B) was appropriate, and urged
the application of the lesser enhancement. The Government also objected that
Purser should have received a 4-level increase pursuant to § 3B1.1(a) because
he was an organizer or leader of a criminal activity involving five or more
participants.




      3
          Id. § 2B1.1(a)(1).
      4
          Id. § 2B1.1(b)(1)(J).
      5
          Id. § 2B1.1(b)(2)(B).
      6
          Id. § 2B1.1(b)(9)(C).
      7
          Id. § 2B1.1(b)(10)(A); § 2B1.1(b)(10)(B).
      8
          Id. § 3B1.3.
      9
          Id. § 3C1.1.

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      Purser objected that he should have received a 2-level decrease under
§ 3B1.2 due to a minor role in the conspiracy. He also objected to the 2-level
increase due to an abuse of a position of trust and the 2-level increase due to
obstruction of justice.
      The revised PSR responded to these objections. As to the § 2B1.1(b)(2)(B)
and § 2B1.1(b)(2)(C) issue, the probation officer acknowledged that the
Government withdrew its objection, but noted that the plea agreement only
bound the Government and Purser. As a result, she recommended a 6-level
increase anyway because the offense involved 250 or more victims—adding 2
levels from the previous 4-level increase. The probation officer also agreed with
the Government and recommended a 4-level increase under § 3B1.1(a) because
Purser was an organizer or leader—adding 4 more levels. The probation officer
rejected Purser’s proposed adjustment under § 3B1.2 for a minor role. She also
rejected Purser’s objection to the abuse of trust adjustment. But the probation
officer did agree that the 2-level adjustment for obstruction of justice was
inapplicable—subtracting 2 levels. Finally, she credited Purser with a 3-level
acceptance of responsibility adjustment—subtracting another 3 levels.
Therefore, the total offense level was 38.
      Purser again objected: this time, to the 6-level increase under
§ 2B1.1(b)(2)(C) and the 4-level increase under § 3B1.1(a); he reasserted a claim
to the minor role adjustment under § 3B1.2; and he renewed his objection to the
abuse of trust adjustment. Purser argued that the Government had breached the
plea agreement by recommending a § 2B1.1(b)(2)(C) adjustment, that its
withdrawal of that recommendation was not sufficient to cure the breach, and
that Purser was entitled to specific performance of the plea agreement. At the
sentencing hearing, Purser also argued that the Government had breached an
“implicit” commitment not to seek further adjustments outside of those specified
in the plea agreement by arguing in favor of the § 3B1.1(a) enhancement.
Finally, Purser filed a motion for downward variance arguing that his prison

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                                   No. 12-20542

exposure was twice that of his co-defendants, including Steve Mills, his former
boss.
        At the sentencing hearing, the district court rejected the minor role
adjustment under § 3B1.2 that Purser sought. However, the court did sustain
the objection to the abuse of trust adjustment—thus, reducing the offense level
by 2 levels. As to the two theories of plea breach, the district court rejected both.
With regard to the argument that the Government breached the plea agreement
by initially seeking a 6-level § 2B1.1(b)(2)(C) enhancement—an enhancement the
Government admitted it had mistakenly sought and now urged against at
sentencing—the district court decided to err on the side of caution:
                    THE COURT: All right. In order to avoid any
             argument that the Government breached the plea
             agreement by its initial objection to Paragraph 59, I’m
             going to rule that the enhancement for number of
             victims should be plus four.
                    My concern is that the Government’s original
             objection may have motivated closer scrutiny by the
             probation officer to the number of victims, although the
             addendum disavows that and says that the increase
             was based solely on the probation officer’s own review
             of the evidence.
                    I think in order to be absolutely careful, the
             increase for the number of victims will be plus four
             instead of plus six. That should eliminate any possible
             objection that the Government has breached the plea
             agreement by urging a greater number of victims.

Thus, the court applied the 4-level adjustment under § 2B1.1(b)(2)(B), not the 6-
level adjustment under § 2B1.1(b)(2)(C)—reducing the offense level by another
2 levels. As for the argument that the Government breached the plea agreement
by seeking a § 3B1.1(a) adjustment, the district court stated that “nothing in
Paragraph 13(f) deals with an aggravating role adjustment.” Accordingly, the
court concluded that there was “no credible argument that the Government
breached the plea agreement by requesting an increase for the Defendant’s role


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                                         No. 12-20542

in the offense.” The total offense level was now 34. The court sentenced Purser
at the bottom of the applicable Guidelines range to 188 months of imprisonment.
Finally, the court denied the motion for downward variance because it was
“persuaded that the facts of this case do not justify a variance.”
       Purser timely filed a notice of appeal, and the present appeal follows.
                                                II
       In his plea agreement, Purser “agree[d] to waive the right to appeal the
sentence imposed or the manner in which it was determined.” The plea
agreement does allow him to appeal “a sentence imposed above the statutory
maximum, any upward departure, or upward variance.” However, since the
present appeal does not fit within this narrow exception, the first question is
whether the appeal waiver bars Purser’s current appeal. At oral argument, the
Government seemed to take the position that it would be willing to forgo the
assertion of the appeal waiver clause, if this Court could reach the merits in its
favor. However, in supplemental briefing submitted after the oral argument, it
is clear that the Government is still asserting the appeal waiver.
       Purser argues that the appeal waiver is void because of the Government
breached the plea agreement. The Government argues that there was no
breach.10 An “alleged breach of a plea agreement may be raised despite a waiver


       10
          The Government also responds in two other ways. First, the Government argues that
the plea agreement was knowing and voluntary. A defendant may waive his right to appeal
as part of a valid plea agreement if the waiver is knowing and voluntary. United States v.
McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Thus, to determine whether an appeal is barred
by an appeal waiver provision in a plea agreement, we would usually consider whether the
waiver (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on
the plain language of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
During Purser’s plea hearing, the district court reviewed the appeal waiver contained in the
plea agreement, and Purser stated that he understood the waiver and agreed to it. He also
stated that no one had threatened him or forced him to plead guilty. Indeed, in his briefs,
Purser does not contend that his plea was unknowing or involuntary. Second, the Government
also argues that the appeal does not fit within the narrow exception of challenging the
adequacy of the factual basis of the conviction. “[A] valid waiver of appeal does not bar review
of a claim that the factual basis for a guilty plea fails to establish the essential elements of the
crime of conviction.” United States v. Trejo, 610 F.3d 308, 312–13 (5th Cir. 2010). But, in his

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provision.”11 Thus, we can properly reach the first question of whether the
Government breached the plea agreement during the course of the proceedings
below.
       Whether the Government has breached a plea agreement is a question of
law that this Court reviews de novo.12 As the Supreme Court has made clear,
“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.”13 In deciding whether the Government violated
a plea agreement, this Court considers “whether the Government’s conduct was
consistent with the defendant’s reasonable understanding of the agreement.”14
The plea agreement is construed strictly against the Government as drafter of
the agreement.15 The defendant has the burden of demonstrating the underlying
facts that establish the breach by a preponderance of the evidence.16
       Purser argues that the Government breached the plea agreement in two
ways. First, the Government explicitly breached the plea agreement when it
objected that § 2B1.1(b)(2)(C) should have applied. Second, the Government
implicitly breached the plea agreement when it argued that the 4-level organizer


briefs, Purser does not claim that he is attacking the factual basis for the guilty plea.
Therefore, the Government’s points are well-taken. But neither goes to the heart of the matter.
Purser’s argument is neither that the plea was not knowing or voluntary nor that the factual
basis is inadequate. Rather he argues that there was a breach of the plea agreement.
       11
         United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011) (internal quotation
marks omitted) (citation omitted). Indeed, when the Government breaches a plea agreement,
the defendant is “necessarily released from an appeal waiver provision contained therein.”
United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).
       12
            United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005).
       13
            Santobello v. New York, 404 U.S. 257, 262 (1971).
       14
            Munoz, 408 F.3d at 226 (internal quotation marks omitted) (citation omitted).
       15
            United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008).
       16
            United States v. Roberts, 624 F.3d 241, 246 (5th Cir. 2010).

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or leader adjustment under § 3B1.1(a), which was not mentioned in the plea
agreement, should have applied.
       Purser’s first theory of plea agreement breach relies on the fact that the
Government initially objected and argued that a 6-level increase under
§ 2B1.1(b)(2)(C) should have applied, rather than the 4-level increase under
§ 2B1.1(b)(2)(B). Under the plea agreement, the Government had agreed to the
4-level increase. Purser acknowledges that the Government withdrew its
objection, but nevertheless contends that the initial instance of the breach voided
the appeal waiver notwithstanding the withdrawal. The Government responds
in several ways. First, to its eyes, the objection and the withdrawal viewed
together do not constitute a breach. Second, the Government argues that any
breach was harmless because the district court specifically stated that it would
follow the plea agreement recommendation of a 4-level increase under
§ 2B1.1(b)(2)(B), not the 6-level increase recommended by the revised PSR.
Third, the Government argues that even if the objection is viewed as a breach,
that breach was later cured by the withdrawal of the objection.
       Purser’s argument that a breach initially occurred succeeds. The
defendant’s reasonable understanding of the agreement was that the
Government would recommend to the district court and the probation officer
that § 2B1.1(b)(2)(B) would apply and that it would not deviate from that
recommendation. By initially advocating for the higher adjustment found in
§ 2B1.1(b)(2)(C), the Government contradicted the express language found in the
plea agreement. As a result, Purser was deprived of the benefit for which he
bargained: namely, that the Government would present a united front that
§ 2B1.1(b)(2)(B) applied.17 We do not agree with the Government’s contention



       17
          Cf. United States v. Grandinetti, 564 F.2d 723, 726 (5th Cir. 1977) (“[T]he defendant
offers his plea not in exchange for the actual sentence or impact on the judge, but for the
prosecutor’s statements in court. If these statements are not adequate (as opposed to
successful), then the agreement has not been fulfilled.”).

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that the episode viewed in its entirety does not constitute a breach. When the
Government acts contrary to the express terms of the plea agreement, it has
breached the plea agreement.18 Similarly, we do not find our prior precedent
distinguishable on the grounds that in those cases the breach took place at the
sentencing hearing itself,19 whereas here the breach occurred before the hearing.
The plea agreement’s express language states that the Government would
“recommend to the Court and the United States Probation office” the agreed
upon conditions. Therefore, it is of no moment that the Government breached the
plea agreement before the sentencing hearing, because the Government still
breached the express terms of the plea agreement.
       Next, we turn to the Government’s contention that the objection was
ultimately harmless since it withdrew the objection and the district court took
special notice of the problematic nature of the objection. Indeed, it was in order
to avoid any arguments about plea agreement breach, that the district court
imposed the § 2B1.1(b)(2)(B) enhancement. Whether harmlessness plays any
role where, as here, the defendant has objected to a breach of the plea agreement
and preserved the issue is a question of some complexity.
       To begin, in Santobello v. New York,20 the Supreme Court clarified that the
essential inquiry does not focus on the harmlessness of the breach of a plea
agreement. In Santobello, while the original prosecutor had agreed not to make
any sentencing recommendation as part of the plea agreement,21 the new




       18
         United States v. Saling, 205 F.3d 764, 767 (5th Cir. 2000) (finding a breach where
“the prosecutor’s statements to the trial judge blatantly violated the plea agreement’s express
terms”).
       19
            See id. at 766 (breach occurred at the sentencing hearing); Munoz, 408 F.3d at 225
(same).
       20
            404 U.S. 257 (1971).
       21
            Id. at 258.

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prosecutor recommended the maximum sentence at the sentencing hearing.22
The sentencing judge chose to sentence the defendant to the maximum sentence,
and in doing so, declared that he was not affected in any way by the new
prosecutor’s breach of the plea agreement.23 The Supreme Court acknowledged
that it had “no reason to doubt” this assurance.24 But the Supreme Court refused
to reach the question of whether the sentencing judge was influenced by the plea
agreement and its subsequent breach.25 Instead, the Supreme Court vacated the
conviction and remanded the case in order to serve “the interests of justice and
[in] appropriate recognition of the duties of the prosecution in relation to
promises made in the negotiation of pleas of guilty.”26 In other words, the
occurrence of the breach itself was enough to lead to vacatur of the judgment,
notwithstanding a harmlessness analysis.
      We have previously read Santobello to foreclose a harmlessness inquiry.
In United States v. Valencia,27 we were faced with an argument that harmless
error analysis should apply in the case of a preserved objection to a plea
agreement breach.28 However, we rejected the attempt to impose a harmless
error inquiry where an objection about plea agreement breach has been
preserved:
                 The interests of justice and standards of good faith in
                 negotiating plea bargains require reversal where a plea
                 bargain is breached. A lesser standard would permit


      22
           Id. at 259.
      23
           Id.
      24
           Id. at 262.
      25
           Id. at 262–63.
      26
           Id. at 262.
      27
           985 F.2d 758 (5th Cir. 1993).
      28
           Id. at 761.

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                 the government to make a plea bargain attractive to a
                 defendant, subsequently violate the agreement and
                 then argue harmless error, thereby defrauding the
                 defendant.29

We have continued to reject the imposition of a harmless error inquiry in our
other cases since Valencia.30 Our decision in United States v. Hooten31 is not to
the contrary. In that case, we found that the government had not breached the
plea agreement.32 Although we stated that even if we had found a breach, such
a finding would “not automatically require resentencing,”33 this was dicta and
not part of the holding of that case.
       Most of our sister circuits have similarly rejected the use of a
harmlessness inquiry in situations of a plea agreement breach where the error
has been preserved.34 We do note that many of these circuits have also adopted
a mitigating doctrine that stands in some contrast to the no-harmlessness
doctrine. Under this mitigating doctrine, there is a harmlessness inquiry only


       29
            Id. (citation omitted).
       30
         See United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“[T]he government
appears to be proposing some kind of harmless error excuse. . . . [We] reject this attempt by
the government to excuse its action as harmless.”); Saling, 205 F.3d at 766–67 (“If a breach
has in fact occurred, the sentence must be vacated without regard to whether the judge was
influenced by the government’s actions.”).
       31
            942 F.2d 878 (5th Cir. 1991).
       32
            Id. at 884.
       33
            Id. (quoting United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)).
       34
         United States v. Clark, 55 F.3d 9, 13–14 (1st Cir. 1995); United States v. Vaval, 404
F.3d 144, 154–55 (2d Cir. 2005); United States v. Martin, 788 F.2d 184, 187 (3d Cir. 1986);
United States v. King, Nos. 91-5338, 91-5339, 1992 WL 75161, at *2 (4th Cir. Apr. 16, 1992)
(per curiam); United States v. Askew, No. 97-6278, 1999 WL 236187, at *2 (6th Cir. Apr. 14,
1999) (per curiam); United States v. Diaz-Jimenez, 622 F.3d 692, 694–97 (7th Cir. 2010);
United States v. Alcala-Sanchez, 666 F.3d 571, 577 (9th Cir. 2012); United States v. VanDam,
493 F.3d 1194, 1202 (10th Cir. 2007); United States v. Hallock, 530 F. App’x 875, 882 (11th Cir.
2013) (per curiam). But see United States v. E.V., 500 F.3d 747, 754–55 & 755 n.13 (8th Cir.
2007) (adopting a harmlessness inquiry).

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in cases where there is a material breach of the plea agreement.35 In other
words, minor breaches do not count. We similarly once held that a breach of a
plea agreement was immaterial.36 However, since the breach in this case cannot
be characterized as immaterial, this mitigating doctrine does not apply.
      Finally, most recently in Puckett v. United States,37 the Supreme Court
was faced with a breach of a plea agreement to which the defendant had not
objected at the district court.38 The Supreme Court held that this was a case of
a forfeited error,39 and as a result, held that plain error review was the
appropriate standard.40 Obviously, that is not the case here where Purser clearly
objected to the breach of the plea agreement and preserved the error. But
Puckett’s assessment of Santobello is instructive. According to Puckett,
“Santobello did hold that automatic reversal is warranted when objection to the
Government’s breach of a plea agreement has been preserved.”41 But the
Supreme Court clarified that this rule was not due to the fact that a plea
agreement breach is a structural error—which are not susceptible or amenable
to harmless error analysis—but rather because of a “policy interest in
establishing the trust between defendants and prosecutors that is necessary to
sustain plea bargaining—an ‘essential’ and ‘highly desirable’ part of the criminal




      35
      Clark, 55 F.3d at 13 n.3; Vaval, 404 F.3d at 155; Diaz-Jimenez, 622 F.3d at 694–97;
VanDam, 493 F.3d at 1202 & n.5.
      36
         United States v. MacInnis, No. 94-20627, 1995 WL 371137, at *5 (5th Cir. June 7,
1995) (per curiam).
      37
           556 U.S. 129 (2009).
      38
           Id. at 131.
      39
           Id. at 138.
      40
           Id. at 143.
      41
           Id. at 141.

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process.”42 In a footnote, the majority opinion explicitly refused to confront the
question of whether Santobello’s “automatic-reversal rule has survived [the
Supreme Court’s] recent elaboration of harmless-error principles.”43 Therefore,
Puckett reads Santobello as, at least currently, foreclosing any harmless error
analysis of a plea agreement breach. Therefore, we cannot agree that
harmlessness plays any role in the inquiry where as here there has been a
breach of the plea agreement and the objection to that breach was properly
preserved.
       We agree with the Government’s contention that the breach of the plea
agreement was adequately cured in this case. While we have previously rejected
arguments that the government successfully cured a plea agreement breach,44
some of our sister courts have allowed for the curing of a plea agreement
breach.45 Indeed, even the Supreme Court has opined that “some breaches may
be curable upon timely objection—for example, where the prosecution simply
forgot its commitment and is willing to adhere to the [plea] agreement.”46 Cure

       42
            Id. (quoting Santobello, 404 U.S. at 261–62).
       43
            Id. at 141 n.3.
       44
         United States v. Munoz, 408 F.3d 222, 227–28 (5th Cir. 2005) (holding that the
government’s effort at curing the breach “amounted to little more than lip service to the plea
agreement and did not rectify the breach”); cf. United States v. Carter, No. 02-20175, 2003 WL
147728, at *3 (5th Cir. Jan. 7, 2003) (rejecting the government’s attempt to cure a breach of
the plea agreement). We do not disturb Munoz’s holding that an equivocal or half-hearted
recantation may be inadequate to cure a breach.
       45
          See, e.g., United States v. Amico, 416 F.3d 163, 165 (2d Cir. 2005) (holding that a
retraction of an argument that violated the plea agreement cured the breach where the
violation “mild, brief, and unassertive” and the retraction was “rapid”); see also Diaz-Jimenez,
622 F.3d at 695–96. But see United States v. Santibanez-Hernandez, 532 F. App’x 339, 340–41
(4th Cir. 2013); Alcala-Sanchez, 666 F.3d at 576–77.
       46
          Puckett, 556 U.S. at 140. The Puckett Court reasoned that applying plain error review
to forfeited errors involving plea agreement breaches would encourage objections at the district
court level. Id. This would prevent gaming of the system and allow for the creating of a factual
record, facilitating appellate review. Id. It would also allow curable breaches to be cured in the
district court. Id. And if the breach were uncurable, it would allow the district court to “grant
an immediate remedy (e.g., withdrawal of the plea or resentencing before a different judge)

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and harmless error stand on different footing from each other. Cure, unlike
harmless error, is the removal of legal defect or correction of legal error; that is,
performance of the contract.47 Simply put, with a cure of breach, the government
abides by the plea agreement, while harmless error excuses a lapse of
government performance. Allowing the government to cure a plea agreement
breach vindicates the “policy interest in establishing the trust between
defendants and prosecutors that is necessary to sustain plea bargaining.”48 Here,
the Government cured its breach by withdrawing its objection and urging the
application of the lesser enhancement, both prior to and at sentencing, and the
district court subsequently acted consistently with the plea agreement. Even
though the revised PSR recommended that § 2B1.1(b)(2)(C) should apply, the
district court specifically applied § 2B1.1(b)(2)(B) in order to cure the breach.
Purser’s argument that the breach also led to the imposition of a 4-level
leadership adjustment pursuant to § 3B1.1(a) fails to persuade. Nothing in the
plea agreement prevented the Government from providing information to the
probation officer or district court about the § 3B1.1(a) adjustment.
       Purser’s second theory of plea agreement breach involves an implicit and
uncured breach. Purser argues that the Government implicitly breached the plea
agreement by urging the application of the 4-level organizer or leader
adjustment under § 3B1.1(a), which was not mentioned in the plea agreement.
Paragraph 13(f) of the plea agreement only deals with “aspects of U.S.S.G.
§ 2B1.1,” and the plea agreement has nothing to say about the rest of the
Guidelines. Moreover, there was no provision in the plea agreement regarding




and thus avoid the delay and expense of a full appeal.” Id.
       47
            See Black’s Law Dictionary 439 (9th ed. 2009).
       48
            Puckett, 556 U.S. at 141.

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    Case: 12-20542         Document: 00512572430         Page: 15   Date Filed: 03/25/2014

                                        No. 12-20542

the total offense level.49 Therefore, we find no implicit commitment on part of the
Government as to any Guidelines provisions not mentioned in the plea
agreement, such as § 3B1.1(a). The district court was correct in rejecting this
theory of plea agreement breach as well.
      Therefore, Purser’s arguments about plea agreement breach fail.
                                              III
      We find that Purser is correct that the Government initially breached the
express terms of the plea agreement by objecting to the original PSR on the basis
that § 2B1.1(b)(2)(C) should have applied. However, this breach was sufficiently
cured by the withdrawal and the actions of the district court. In concluding so,
we do not retreat from the principle that the government must honor its plea
agreements. Nor do we step on Puckett’s recognition of the policy interest
necessary for plea bargaining, namely the trust between defendants and
prosecutors—an interest resting on the reality that 97% of federal criminal
convictions are the result of pleas of guilty.50 With the adoption of the Sentencing
Guidelines, plea bargaining now lies at the center of the adversarial contest.
Next, we find that the Government did not implicitly breach the plea agreement
by advocating for the § 3B1.1(a) adjustment. As a result, we find that the appeal
waiver is still applicable and bars Purser’s appeal. We DISMISS the appeal.




      49
         Munoz, 408 F.3d at 225–27 (finding a plea agreement breach because there was an
implicit promise not to argue for an enhancement not in the plea agreement—a plea
agreement that contained a provision as to the total offense level).
      50
           Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).

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