                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-2494
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
William Lonnie Hanshaw,                 *
                                        *     [PUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: March 12, 2012
                                Filed: July 26, 2012
                                 ___________

Before MELLOY, SMITH and SHEPHERD, Circuit Judges
                           ___________

PER CURIAM.

       William Lonnie Hanshaw pleaded guilty, pursuant to a plea agreement, to
conspiracy to manufacture over 500 grams of methamphetamine mixture and 50
grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The
district court1 initially sentenced Hanshaw to 240 months' imprisonment. Thereafter,
the government filed a Federal Rule of Criminal Procedure 35(b) motion,
recommending a ten-percent reduction in Hanshaw's sentence. The district court held
a telephonic hearing on the motion in which the government and Hanshaw's

      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
counsel—but not Hanshaw—participated. The court followed the government's
recommendation and granted a ten-percent reduction in Hanshaw's sentence.
Hanshaw appeals, arguing that the government breached the plea agreement by
allowing the Rule 35(b) hearing to proceed in his absence and thereby deprived him
of his contractual right to "make whatever comment or evidentiary offer [he] deem[s]
appropriate at . . . any . . . proceeding . . . related to [his] case." We affirm.

                                 I. Background
      Hanshaw pleaded guilty, pursuant to a plea agreement, to conspiracy to
manufacture methamphetamine. Based on the amount of methamphetamine involved
and Hanshaw's prior drug-felony conviction, Hanshaw faced a mandatory minimum
sentence of 20 years' imprisonment and a maximum sentence of life imprisonment.

      Hanshaw's plea agreement was silent on Hanshaw's potential cooperation with
the government and on any potentially related reduction in his sentence. The only
references to future proceedings appeared in ¶¶ 11 and 16 of the plea agreement.
Paragraph 11 referred to "other proceeding[s] related to this case," stating:

             Evidence at Sentencing. The parties may make whatever comment
      or evidentiary offer they deem appropriate at the time of the guilty plea,
      sentencing, or any other proceeding related to this case, provided such
      offer or comment does not violate any other provision of this
      Agreement. The parties are also free to provide all relevant information
      to the U.S. Probation Office for use in preparing a presentence report.

(Emphasis added.)

      Paragraph 16 provided that Hanshaw "waives any and all rights to contest his
conviction of the subject charge in any post-conviction proceedings," with limited
exceptions.



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       The district court sentenced Hanshaw to 240 months' imprisonment on June 8,
2009. Almost two years later, on April 25, 2011, the government moved to reduce
Hanshaw's sentence pursuant to Federal Rule of Criminal Procedure 35(b). The
government stated that Hanshaw had "provided substantial assistance in the
investigation and prosecution of other individuals who have committed criminal
offenses." The government "recommend[ed] a sentencing reduction of 10% off the
sentence to be imposed by the Court."

      The district court conducted a telephonic hearing on the Rule 35(b) motion.
Counsel for the government and Hanshaw were present, but Hanshaw was not. At no
time did Hanshaw's counsel request Hanshaw's presence or object to proceeding in
his absence. During the hearing, the government recommended a ten-percent
reduction, noting that Hanshaw's information proved only slightly useful to the
government. Hanshaw's counsel asked for a 25-percent reduction in Hanshaw's
sentence. According to Hanshaw's counsel, Hanshaw's honest efforts to cooperate
warranted a larger reduction in his sentence.

       The district court followed the government's recommendation and granted a
ten-percent reduction in Hanshaw's sentence after noting that Hanshaw provided
minimal assistance to the government because the target of an investigation entered
a guilty plea without the government's use of information that Hanshaw supplied. The
court reduced Hanshaw's sentence from 240 months' imprisonment to 216 months'
imprisonment.

                                     II. Discussion
       On appeal, Hanshaw argues that ¶ 11 of the plea agreement created a due
process right to participate in the Rule 35(b) hearing and that his absence denied him
that right. Hanshaw asserts that the Rule 35(b) hearing was a proceeding related to
his case as contemplated by the written plea agreement. He argues that ¶ 11 provided
that he could make whatever comment or evidentiary offer that he deemed

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appropriate at that time. According to Hanshaw, by not being present at the hearing,
he was denied this opportunity. He contends that his plea agreement is nearly
identical to the plea agreement at issue in United States v. Lewis, 673 F.3d 758 (8th
Cir. 2011).

       In response, the government argues that the district court did not plainly err by
failing to sua sponte require Hanshaw's presence at the Rule 35(b) hearing because
nothing in Hanshaw's plea agreement afforded Hanshaw the right to participate
personally in the hearing. The government notes that Hanshaw was represented by
counsel, who vigorously argued for a greater reduction than that recommended by the
government. According to the government, Hanshaw has failed to identify any
additional arguments or information that he could have provided to the district court
had he been present. Thus, the government concludes that Hanshaw has failed to
demonstrate any error at all, much less plain error.

      We lack "'jurisdiction to review Rule 35(b) sentences unless one of four criteria
are met under 18 U.S.C. § 3742(a).'" Id. at 761 (quoting United States v. Williams,
590 F.3d 579, 580 (8th Cir. 2009)).

      These four criteria are: "(1) the sentence was imposed in violation of
      law, (2) the sentence was imposed using an incorrect application of the
      sentencing guidelines, (3) the sentence is greater than the applicable
      guidelines range, or (4) the sentence is imposed for an offense without
      a sentencing guideline and is plainly unreasonable."

Id. (quoting Williams, 590 F.3d at 580).

       Here, Hanshaw argues "that he was denied the right to participate in the
hearing in violation of his plea agreement." Id. We have recognized that permitting
"'the government to breach a promise that induced a guilty plea violates due process.'"
Id. (quoting United States v. Jensen, 423 F.3d 851, 854 (8th Cir. 2005)).

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"Accordingly, because [Hanshaw] claims that his sentence was 'imposed in violation
of law,' his Rule 35(b) sentence is subject to review under § 3742(a)(1)." Id.

       Because "'[p]lea agreements are contractual in nature,'" we must interpret them
"'according to general contractual principles.'" Id. at 762 (quoting Jensen, 423 F.3d
at 854). "[I]t is a familiar principle of contractual interpretation that 'contracts must
be interpreted to give effect to every provision,' Keymer v. Mgmt. Recruiters Int'l,
Inc., 169 F.3d 501, 505 (8th Cir. 1999)." Id.

       In Lewis, the defendant's plea agreement provided that "'[t]he defendant, the
defendant's attorney, and the Government attorney may make whatever comment and
evidentiary offer they deem appropriate at the time of the guilty plea, sentencing, or
any other proceeding related to this case.'" Id. at 760. "The district court accepted the
plea agreement and 'agreed to be bound by that agreement.'" Id. (alteration omitted).
Thereafter, the government moved to reduce the defendant's sentence pursuant to
Rule 35(b) "due to his 'substantial assistance in the investigation and prosecution of
other individuals who have committed criminal offenses.'" Id. In the motion, the
government "briefly discussed the assistance that [the defendant] had provided,
including testifying for the State of Illinois in the first-degree murder trial of Marcus
Northern." Id. The government "also noted that [the defendant] had 'indicated that his
family has been threatened by associates of Mr. Northern due to [the defendant's]
testimony against him.'" Id. The government recommended a 20-percent reduction in
the defendant's sentence. Id.

      The district court held a telephonic hearing on the Rule 35(b) motion. "[The
defendant] did not participate in the hearing, nor was he even aware that the motion
had been filed. However, [the defendant's] counsel participated in the hearing and did
not object to [the defendant's] absence." Id. The government argued that the court
should only grant the 20-percent reduction because the defendant "is 'a rather
notorious thug' whose offense was 'extremely egregious.'" Id. The defendant's

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"counsel largely agreed that the Government had not 'misrepresented any of the facts
concerning [the defendant]." Id. Defense counsel informed the court that he had not
spoken with the defendant; however, counsel argued that the defendant "'would want
[a] 50 percent [decrease] if he were here to speak for himself.'" Id. (alterations in
original). The district court granted the 20-percent reduction that the government
recommended. Id.

       Two months later, the defendant learned that the district court held the Rule
35(b) hearing in his absence. Id. "Dissatisfied with the 24-month reduction and upset
that he had not been notified of the hearing, [the defendant] filed a pro se motion
complaining of 'bad faith' on the part of the Government and requesting a new Rule
35(b) hearing in which he could participate." Id. But the defendant "did not mention
his plea agreement in this motion or specifically argue that the agreement granted him
a right to participate in the Rule 35(b) hearing. The district court denied [the
defendant's] motion." Id.

       On appeal, the defendant "argu[ed] that the Government breached the plea
agreement by allowing the hearing to go forward in his absence and thereby depriving
him of his contractual right to 'make whatever comment and evidentiary offer [he]
deem[s] appropriate at . . . any . . . proceeding related to [his] case.'" Id. at 760–61
(alterations in original). Because the defendant failed to raise his claim of breach
before the district court, "either through his attorney at the Rule 35(b) hearing or in
his pro se motion," we reviewed only for plain error. Id. at 761. The defendant had
to show the following to succeed under a plain-error analysis: "(1) an error, (2) that
was plain, and (3) affects substantial rights, and that (4) the error seriously affects the
fairness, integrity or public reputation of judicial proceedings." Id. at 762 (quotations,
alterations, and citations omitted).

      We noted that the plea agreement in Lewis stated "that '[t]he defendant, the
defendant's attorney, and the Government attorney may make whatever comment and

                                           -6-
evidentiary offer they deem appropriate at the time of the guilty plea, sentencing, or
any other proceeding related to this case.'" Id. (emphasis added) (alteration in
original). We then held that the district court plainly erred in denying the defendant's
"contractual right to participate in the Rule 35(b) hearing." Id. at 763.

        Here, ¶ 11 of Hanshaw's plea agreement and the Lewis plea agreement are
virtually identical, except that Hanshaw's plea agreement provides that "[t]he parties
may make whatever comment and evidentiary offer they deem appropriate at the time
of the guilty plea, sentencing, or any other proceeding related to this case . . . ."
(Emphasis added.) By contrast, the Lewis plea agreement provided that "'[t]he
defendant, the defendant's attorney, and the Government attorney may make whatever
comment and evidentiary offer they deem appropriate at the time of the guilty plea,
sentencing, or any other proceeding related to this case.'" Id. at 760 (emphasis added).
Thus, while the plea agreement in Lewis directly identified the defendant, Hanshaw's
plea agreement is ambiguous, as it does not directly identify the defendant but instead
identifies "the parties." We must construe any ambiguity in the plea agreement against
the government and in Hanshaw's favor. See id. at 763 ("Where a plea agreement is
ambiguous, the ambiguities are construed against the government." (quotation and
citation omitted)). As a result, "parties" could include the defendant, in addition to his
counsel. "Thus, even if the language of the plea agreement did not foreclose the
Government's interpretation beyond all doubt, the district court was bound to construe
the agreement against the Government as guaranteeing [Hanshaw's] right to
participate in the Rule 35(b) hearing." Id. As a result, the court "committed an error
that is 'clear' or 'obvious'" by proceeding with the hearing in Hanshaw's absence. Id.
(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

      Even though we construe the plea agreement to provide Hanshaw with the right
to participate in the Rule 35(b) hearing, and the district court's failure to permit
Hanshaw's participation in the Rule 35(b) hearing was plain error, we hold that,
unlike in Lewis, the error did not affect Hanshaw's substantial rights. See id. As the

                                           -7-
government points out in its brief, the "critical distinction" between the present case
and Lewis is that, in Lewis, the defendant's "pro se motions suggest[ed] that he had
cooperated in the investigation or sentencing of at least fifteen other individuals,"
apart from the single case that his attorney and the government mentioned during the
Rule 35(b) hearing. Id. And, in Lewis, the defendant claimed that he could have
supplied information about threats made against his family as a result of his
cooperation—threats about which the district court noted that it lacked information
during the Rule 35(b) hearing. Id. "Given the significance of this additional
information as well as the district court's demonstration of interest in the threats
against [the defendant's] family," this court held in Lewis "that [the defendant] ha[d]
shown a reasonable probability that, but for [the error claimed], the result of the
proceeding would have been different." Id. (quotation and citation omitted) (third
alteration in original).

       By contrast, Hanshaw has not identified any additional information that he
would have supplied to the district court or any additional arguments that he would
have made to the court had he been present at the Rule 35(b) hearing. He has not
identified anything in the record indicating that the district court would have granted
a larger reduction in his sentence if he had been personally allowed to participate.
Under these circumstances, Hanshaw has failed to show that the error of his absence
from the Rule 35(b) hearing affected his substantial rights. See id.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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