                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                              No. 02-4164
RIDDICK LAMONT BOWE, SR.,
               Defendant-Appellee.
                                        
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-98-117-MU)

                         September 24, 2002

                      Decided: October 30, 2002

Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.



Vacated and remanded for resentencing by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Widener and Judge
Gregory joined.


                             COUNSEL

ARGUED: Kenneth Davis Bell, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellant.
James Edward Neuman, MISCHEL, NEUMAN & HORN, P.C., New
York, New York, for Appellee. ON BRIEF: Robert J. Conrad, Jr.,
United States Attorney, Brian Lee Whisler, Assistant United States
Attorney, Charlotte, North Carolina, for Appellant. Joseph L. Led-
2                      UNITED STATES v. BOWE
ford, Charlotte, North Carolina; Thomas S. Hicks, Wilmington, North
Carolina, for Appellee.


                             OPINION

NIEMEYER, Circuit Judge:

   Pursuant to a plea agreement, Riddick Bowe pleaded guilty to a
one-count indictment charging him with interstate domestic violence,
in violation of 18 U.S.C. § 2261(a)(2). The plea agreement included
Bowe’s agreement to be sentenced under the Sentencing Guidelines
at an offense level of 15 (providing a sentencing range of 18 to 24
months’ imprisonment, plus 2 to 3 years’ supervised release) and not
to seek a downward departure. As a result of Bowe’s breach of this
agreement, the district court departed from the agreed-upon range and
sentenced Bowe to four years’ probation, including 30 days in a com-
munity confinement facility.

   On appeal, we vacated the sentence and remanded for resentencing
"within the applicable Sentencing Guideline range of 18 to 24
months," United States v. Bowe, 257 F.3d 336, 348 (4th Cir. 2001)
("Bowe I"), and on remand the district court sentenced Bowe to 18
months’ imprisonment. In doing so, however, the court credited the
time that Bowe had served on probation pending the appeal of Bowe
I (roughly 18 months) against his term of imprisonment, concluding
that the Double Jeopardy Clause required this result. The court effec-
tively relieved Bowe of any obligation to serve a term of imprison-
ment.

   On this second appeal, we again vacate the judgment of the district
court and remand for resentencing within the range of 18 to 24
months’ imprisonment and without any credit for the period served on
probation. As we explain further, we conclude that the Double Jeop-
ardy Clause cannot be applied to reward Bowe with a type of punish-
ment less severe than that provided for in his plea agreement when
the less severe punishment was obtained only by his breach of his
plea agreement.
                        UNITED STATES v. BOWE                          3
                                    I

   In the early morning of February 25, 1998, Bowe, the former
heavyweight boxing champion, forced his estranged wife and their
five children, through physical threats and intimidation, into a Lincoln
Navigator in an attempt to take them against their will from North
Carolina to Maryland. During the trip, Bowe slapped his wife and
threatened her with a knife, stabbing her in the breast with sufficient
force to penetrate a heavy jacket and draw blood. When Bowe and his
family stopped at a restaurant off Interstate 85, Bowe’s wife was able
to ask two women in the restroom to call the police, and the police
thereafter stopped the Navigator and arrested Bowe. Bowe was
indicted for interstate domestic violence, in violation of 18 U.S.C.
§ 2261(a)(2).

   Bowe’s plea agreement provided not only for the level of his sen-
tence but also his agreement that "no departures will be sought by
either party and all arguments are limited to recommendations regard-
ing a sentence within the applicable range of the U.S. Sentencing
Guidelines." Contrary to this agreement, however, Bowe presented
evidence at the sentencing hearing that he suffered from a diminished
mental capacity, and, based on this evidence, the district court
departed downward five offense levels, sentencing Bowe to four
years’ probation.

   On the government’s appeal, we held that Bowe breached his plea
agreement by presenting evidence to obtain the downward departure
based on diminished mental capacity. Bowe I, 257 F.3d at 346. In
remanding the case to the district court, we instructed the court to "de-
termine whether Bowe’s guilty plea should be set aside, or whether
he should be required to comply with his agreement not to seek or
argue for a departure from the sentencing guidelines." Id. at 347-48.
We also instructed that, "[i]f the district court concludes that the
appropriate remedy in this matter is specific performance of the plea
agreement, it is directed to impose a sentence that is within the appli-
cable Sentencing Guideline range of 18 to 24 months [of imprison-
ment] for an adjusted offense level of 15, and not to depart based on
evidence of diminished capacity." Id. at 348.

  On remand, the district court sentenced Bowe to 18 months’
imprisonment but then credited him with over 18 months that he
4                      UNITED STATES v. BOWE
served on probation during the pendency of the government’s appeal.
Relying on United States v. Lominac, 144 F.3d 308 (4th Cir. 1998),
and United States v. Layman, No. 97-4803, 1998 WL 709267 (4th
Cir. Oct. 6, 1998) (per curiam) (unpublished), the district court con-
cluded that the Double Jeopardy Clause compelled it to credit Bowe’s
service of probation against his 18-month sentence of imprisonment.
From the district court’s judgment, the government appealed.

                                  II

   At the outset, we address Bowe’s argument that we should dismiss
the appeal on the ground that the government waived its right to
appeal. Bowe contends that because the plea agreement contained an
express waiver by him of his right to appeal, we must infer a recipro-
cal waiver by the government of its right to appeal. He relies on our
decision in United States v. Guevara, 941 F.2d 1299 (4th Cir. 1991),
in which we inferred a reciprocal waiver by the government because
the government "implicitly cast its lot with the district court, as the
defendant explicitly did." Id. at 1299-1300. But despite our holding
in Bowe I that Bowe could not rely on an implied waiver when he had
"materially breached the terms of the plea agreement," 257 F.3d at
342, Bowe argues again on this appeal that his agreement to waive the
right to appeal nonetheless imposes a reciprocal agreement on the
government with respect to this second appeal.

   Again, we reject Bowe’s argument and his effort to have us recon-
sider our earlier decision. Through his breach, Bowe induced the dis-
trict court to spare him the prison sentence anticipated by his plea
agreement, receiving instead a term of probation. As we said in Bowe
I,

    had the Government breached the plea agreement, Bowe
    would not have been bound by his waiver. We conclude that
    this principle must also be applied reciprocally. We hold
    that where a defendant has materially breached the terms of
    the plea agreement, the Government is released from its
    implied reciprocal promise . . . not to appeal the merits of
    a judgment of conviction or sentence.

Id. This second appeal is not insulated from our holding in Bowe I.
To the contrary, this appeal follows closely from the district court’s
                        UNITED STATES v. BOWE                          5
effort to apply our mandate in Bowe I. Because we had jurisdiction
to review Bowe’s breach in Bowe I, we likewise have jurisdiction
now to review the district court’s implementation of our mandate.

                                   III

   For its appeal, the government contends that the district court erred
in crediting the time that Bowe served on probation against his 18-
month sentence of imprisonment. It argues that the Double Jeopardy
Clause does not require a court to credit probation against imprison-
ment because imprisonment and probation are "asymmetrical, non-
fungible punishments" and "supervised release is more akin to proba-
tion." In its brief, the government did allow that the time served on
probation should be credited against the term of supervised release.
But in responding to questioning at oral argument, the government
defended the position that the Double Jeopardy Clause did not entitle
Bowe to any credit. It explained its earlier concession that probation
should be credited against supervised release by its posture of wanting
"to be fair, and to appear fair to the district court, because it was our
sense based upon the pleadings and the discussions that the district
court would think it ought to be credited." In making its double jeop-
ardy argument, the government maintains that the district court’s reli-
ance on Lominac and Layman (an unpublished opinion relying on
Lominac) was misplaced because the facts in those cases are distin-
guishable and the holdings should be limited to their facts.

   Bowe, in response, contends that a sentence of probation amounts
to punishment within the meaning of the Double Jeopardy Clause and
that a failure to give him credit against his imprisonment for the time
served on probation would result in the imposition of multiple punish-
ments for the same offense, in violation of the Double Jeopardy
Clause. He relies on North Carolina v. Pearce, 395 U.S. 711, 718-19
(1969) (noting that any "punishment already exacted must be fully
‘credited’ in imposing sentence upon a new conviction for the same
offense"), and Lominac.

   The Double Jeopardy Clause of the Fifth Amendment provides that
no person shall "be subject for the same offence to be twice put in
jeopardy of life or limb." U.S. Const. amend. V. This provision pro-
tects defendants against second prosecutions for the same offense
6                       UNITED STATES v. BOWE
after either an acquittal or a conviction and against multiple punish-
ments for the same offense. Pearce, 395 U.S. at 717. The protection
against second prosecutions "prevents the State from honing its trial
strategies and perfecting its evidence through successive attempts at
conviction. Repeated prosecutorial sallies would unfairly burden the
defendant and create a risk of conviction through sheer governmental
perseverance." Tibbs v. Florida, 457 U.S. 31, 41 (1982). And the pro-
tection against multiple punishments ensures "that sentencing courts
do not exceed, by the device of multiple punishments, the limits pre-
scribed by the legislative branch of government, in which lies the sub-
stantive power to define crimes and prescribe punishments." Jones v.
Thomas, 491 U.S. 376, 381 (1989). As the Court explained in Jones,
this "interest that the Double Jeopardy Clause seeks to protect . . . is
limited to ensuring that the total punishment did not exceed that
authorized by the legislature." Id. (quotation marks and internal cita-
tions omitted).

   While the Double Jeopardy Clause thus targets oppressive conduct
of government prosecutors in seeking multiple prosecutions or multi-
ple punishments, it has never precluded a second trial for a defendant
"who has succeeded in getting his first conviction set aside," Pearce,
395 U.S. at 720, or a second more serious punishment imposed on a
defendant for his breach of a plea agreement when the first lesser pun-
ishment was forfeited by noncompliance with the agreement, Ricketts
v. Adamson, 483 U.S. 1, 3 (1987). In Adamson, the defendant pleaded
guilty to second-degree murder and was sentenced to a term of
imprisonment pursuant to a plea agreement that required him to tes-
tify against other defendants. If the defendant failed so to testify, the
agreement provided that his plea and sentence would be vacated and
he could thereafter be prosecuted for first-degree murder. When the
defendant breached the plea agreement and the State thereafter prose-
cuted him for first-degree murder, obtaining the death penalty, the
defendant claimed protection of the Double Jeopardy Clause to bar
the second trial. In rejecting this argument, the Supreme Court held
that the Double Jeopardy Clause does not relieve a defendant from the
consequences of his own breach. Id. at 11; see also United States v.
Scott, 437 U.S. 82, 99 (1978) (noting that "the Double Jeopardy
Clause . . . does not relieve a defendant from the consequences of his
voluntary choice").
                         UNITED STATES v. BOWE                           7
   In this case, the plea agreement provided that Bowe receive a sen-
tence of between 18 and 24 months’ imprisonment and that Bowe not
seek a downward departure during sentencing. As we concluded in
Bowe I, Bowe materially breached this agreement, and, as a conse-
quence of his breach, the district court imposed a sentence of proba-
tion. We believe that Bowe cannot, under a claim of double jeopardy,
now assert that the sentencing court properly reduced his term of
imprisonment by the amount of time that he had already served in
probation, a lesser type of punishment that he wrongfully obtained by
breaching his plea agreement. The Supreme Court’s analysis in
Adamson counsels us to reject such a conclusion. The Adamson Court
concluded that the defendant chose to breach the plea agreement and
"the Double Jeopardy Clause does not relieve him from the conse-
quences of that choice." 483 U.S. at 11. Thus, in this case, had Bowe
complied with the plea agreement, he would have received a sentence
of imprisonment, and he could not have obtained the sentence of proba-
tion.1 Because of his breach, the government was deprived of its bar-
gain that Bowe serve a sentence of at least 18 months’ imprisonment,
and Bowe cannot now claim that his breach should be rewarded with
the lesser sentence. Such a conclusion would not only reward Bowe
unjustly, but would also encourage other artful dodges. Moreover,
such a conclusion would deny the government its one fair shot at con-
viction, obtained in this case through a plea agreement. See Burks v.
United States, 437 U.S. 1, 16 (1978) (acknowledging that the Double
Jeopardy Clause is not to be construed to deprive the government’s
right on behalf of society to be given "one fair opportunity" to present
sufficient evidence to prove its case). The probation that Bowe
received by breaching his plea agreement was a lesser type of punish-
ment than his plea agreement required. Such punishment was there-
fore not "exacted" by the government, and Bowe was therefore not
entitled under Pearce to credit for that type of punishment. See
Pearce, 395 U.S. at 718-19.

  Accordingly, we conclude that the Double Jeopardy Clause did not
entitle Bowe, who had materially breached his plea agreement, to any
  1
   A sentencing level of 15 would have placed Bowe in Zone D of the
Sentencing Table, and "[w]here the applicable guideline range is in Zone
C or D of the Sentencing Table . . . the guidelines do not authorize a sen-
tence of probation." U.S.S.G. § 5B1.1, comment. (n.2).
8                       UNITED STATES v. BOWE
credit at resentencing for the time that he served on probation when
that form of punishment would not have been imposed absent his
breach. In reaching this conclusion, we note that our holding in
Lominac is dependent on its factually distinct circumstances.2

                                   IV

   With Bowe’s double jeopardy claim rejected, we note that Bowe
has not identified any statutory authority that would have authorized
the district court to credit probation time against prison time. The pro-
vision of the United States Code usually relied upon in computing
credit due only authorizes credit against imprisonment "for any time
[the defendant] has spent in official detention prior to the date the sen-
tence commences." 18 U.S.C. § 3585(b) (emphasis added); see also
Randall v. Whelan, 938 F.2d 522 (4th Cir. 1991) (declining to credit
against a term of imprisonment any time spent in a community con-
finement center); United States v. Insley, 927 F.2d 185 (4th Cir. 1991)
(declining to credit against a term of imprisonment the time spent
before appeal under restrictions substantially limiting the defendant’s
liberty).

   In denying Bowe any credit against imprisonment for his proba-
tion, we also deny him credit against his period of supervised release.
Again, we are aware of no statute that authorizes such credit. To the
contrary, Congress has manifested an intent to require full service of
supervised release for rehabilitative purposes. See United States v.
Johnson, 529 U.S. 53 (2000). In Johnson, the question was whether
the defendant was statutorily entitled to a reduction in the term of his
supervised release to compensate him for an extra two and one-half
years that he served in prison. Holding that the defendant was not
entitled to such credit under 18 U.S.C. § 3624(e), the controlling
authority, the Supreme Court pointed out that the statute "does not
reduce the length of a supervised release term by reason of excess
time served in prison," id. at 60, stating that "Congress intended
supervised release to assist individuals in their transition to commu-
    2
   In Lominac, we were called upon to remedy an ex post facto violation
in which a defendant, who had violated the terms of his supervised
release, was subsequently resentenced, under retrospectively applied law,
to an unconstitutional new period of supervised release.
                       UNITED STATES v. BOWE                         9
nity life," id. at 59. In accordance with congressional intent, we thus
also deny Bowe credit against his period of supervised release.

                                  V

   Because the district court erred in crediting the time that Bowe
served on probation against his 18-month term of imprisonment, we
vacate the district court’s judgment and remand with instructions that
the court resentence Bowe within the applicable sentencing range for
an offense level of 15 and without granting Bowe any credit for the
time served on probation.

              VACATED AND REMANDED FOR RESENTENCING
