                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3610
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Thomas Jensen,                           *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 9, 2005
                                 Filed: September 13, 2005
                                  ___________

Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Thomas Jensen appeals from the sentence imposed by the district court1
following his plea of guilty to assaulting a federal officer, a violation of 18 U.S.C. §
111. We affirm.

                                          I.
      Tribal police officers and Special Agent Carl Martinez of the Bureau of Indian
Affairs were summoned to Jensen’s home on the Pine Ridge Indian Reservation on

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
August 13, 2003, in response to a complaint that Jensen was threatening his sister and
her children. Jensen was depressed, intoxicated, and armed with a rifle. After
assessing the situation, the officers divided into entry teams, with the objective of
entering Jensen’s home and disarming him. Several officers kicked in the doorway,
and Jensen raised his rifle at them as they approached. Upon seeing Jensen raise his
rifle, Special Agent Martinez backed away for his safety, fell, and injured his back.

       Following his arrest, Jensen pled guilty pursuant to a plea agreement. Part D
of the Agreement provided, in relevant part, that:

      The United States agrees that it will unless there is significant evidence
      disclosed in the presentence investigation to the contrary, recommend
      that the Court find that the defendant clearly demonstrates a recognition
      and affirmative acceptance of personal responsibility for his criminal
      conduct, and in recognition thereof, in accordance with U.S.S.G. §
      3E1.1(a), reduce the defendant’s offense level by two levels.

      If the defendant enters into this plea agreement by July 13, 2004, and
      returns a signed copy of the plea agreement to the United States, and
      assuming U.S.S.G. § 3E1.1(b) applies, the United States will make a
      motion, pursuant to U.S.S.G. § 3E1.1(b), stating that the defendant has
      assisted authorities in the investigation of his own misconduct and
      asking the Court to find that the defendant timely notified authorities of
      his intention to enter a guilty plea, thereby permitting the United States
      to avoid preparing for trial and permitting the United States and the
      Court to allocate its resources efficiently, and in recognition thereof,
      reduce the defendant’s offense level by an additional level.

Plea Agreement at 2. Jensen signed the plea agreement on July 7, 2004.

      The district court permitted Jensen to stay at a community corrections facility
pending sentencing so that he could participate in a substance abuse treatment
program and attempt to obtain employment. After being granted a weekend pass from


                                         -2-
the facility, Jensen returned two days late and admitted to drinking alcohol and
smoking marijuana over the course of the weekend. Although the government argued
at sentencing that these actions precluded Jensen from receiving a two-level reduction
for acceptance of responsibility, the district court granted the reduction. The district
court noted that it was unable to award an additional level reduction because the
government had not moved for one. In light of its award of a two-level reduction for
acceptance of responsibility, the district court calculated Jensen’s guidelines range
as 30 to 37 months in custody. Following its extensive recitation of the
circumstances that it took into account in determining an appropriate sentence for
Jensen, including the fact that Jensen had placed the lives of several family members
and several officers at risk, the district court concluded that “I think that a sentence
in the middle of the advisory guideline range of 33 months is appropriate after I
factored in all of those factors.” Sent. Tr. at 38.

                                          II.
       Jensen asserts that the government breached the plea agreement in failing to
move that an additional level reduction be awarded. We review de novo issues
pertaining to the interpretation and enforcement of a plea agreement. United States
v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). Plea agreements are contractual in
nature and should be interpreted according to general contractual principles. Id.
Where a plea agreement is ambiguous, the ambiguities are construed against the
government. United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc).
Allowing the government to breach a promise that induced a guilty plea violates due
process. United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996). “With
respect to federal prosecutions, the courts’ concerns run even wider than protection
of the defendant’s individual constitutional rights—to concerns for the honor of the
government, public confidence in the fair administration of justice, and the effective
administration of justice in a federal scheme of government.” United States v.
Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005) (citation omitted).



                                          -3-
        By signing the plea agreement on July 7, 2004, Jensen satisfied the condition
set forth in the second paragraph of Part D of the plea agreement. The government
contends, however, that the caveat in the first paragraph of Part D (“. . . unless there
is significant evidence disclosed in the presentence investigation to the contrary”)
applies to the second paragraph and that Jensen’s actions negated the government’s
obligation to move for the additional level reduction. Whatever force this argument
might have in other circumstances (and we note that the government could no doubt
have drafted the agreement in such a way as to make express its argued-for meaning),
we conclude that once the district court granted a two-level reduction on its own
motion, the government was obligated to move for the additional level reduction and
that its failure to do so constituted a breach of the agreement.

                                           III.
       Because Jensen failed to allege a breach at sentencing, we are limited to
reviewing his now-raised challenge for plain error under the four-part test of United
States v. Olano, 507 U.S. 725 (1993). Pursuant to that test, before we can correct an
error not raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects
substantial rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997). If all three
conditions are met, we may remedy the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.

       Assuming, arguendo, that Jensen has established the existence of the first two
Olano factors, we conclude that he has not established that his substantial rights have
been affected. Jensen cites United States v. Granados, 168 F.3d 343 (8th Cir. 1999)
(per curiam), for the proposition that when the government breaches a plea
agreement, “ a defendant’s substantial rights are affected if his sentence is longer than
it should have been under the plea agreement.” Likewise, Jensen cites our recent
opinion in United States v. Morton, 412 F.3d 901 (8th Cir. 2005), in which we
reiterated our holdings that unless the government can show that its breach of an



                                            -4-
agreement to move for a downward departure did not affect the sentence imposed, the
defendant is entitled to be resentenced.

        We conclude that Granados and Morton do not establish that Jensen is entitled
to resentencing. The defendant in Granados was sentenced to 175 months, and the
appropriate guideline range absent the breach was between 121-151 months. In
contrast, Jensen was sentenced to 33 months, and the applicable guideline range
absent the breach would have been between 27-33 months. In Morton, the defendant
was sentenced at the bottom of the sentencing range for his offense, leading the court
to believe that a lesser sentence might have been imposed had the government
fulfilled its obligation to move for a one-level reduction under § 3E1.1(b).

       We are led to this conclusion because in sentencing Jensen the district court
explicitly deemed the guidelines as being advisory only. See Sen. Tr. at 4 (“I am
going to view the sentencing guidelines as advisory only and not as binding under the
particular circumstances of this case.”). As indicated above, the district court
concluded that “a sentence in the middle of the advisory guideline range of 33 months
is appropriate.” Id. at 38. Jensen emphasizes the district court’s use of the phrase “in
the middle” and infers from this language that, absent the breach, the district court
would have sentenced him to 30 months, which is the middle of the range that would
have been applicable had the government moved for the additional downward
departure level. We find this argument unpersuasive. In light of the district court’s
treatment of the guidelines as advisory only and its extensive discussion of the myriad
factors that went into its sentencing determination (including the fact that Jensen’s
actions put at risk the lives of his sister, her three children, and the law enforcement
officers), id., Jensen has not demonstrated a reasonable probability that the district
court would have imposed a lesser sentence had the government moved for the
additional reduction level. Accordingly, he has not established prejudice sufficient
to satisfy the third Olano factor.

      The sentence is affirmed.
                      ______________________________

                                          -5-
