                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3850
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                      Jesus Lara

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                      for the Western District of Arkansas
                                 ____________

                             Submitted: June 11, 2012
                              Filed: August 31, 2012
                                  ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Jesus Lara pled guilty to distribution of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). The
district court sentenced him to 130 months’ imprisonment. Lara appeals his sentence,
arguing that the government breached his plea agreement at the sentencing hearing.
Having jurisdiction under 28 U.S.C. § 1291, this court vacates and remands for
resentencing.
       Lara entered into a plea agreement with the government that contained a
stipulation on the drug quantity:

       10. The United States and the defendant agree that the most readily
       provable amount of drugs for which the defendant should be held
       accountable is at least 20 grams of methamphetamine, but less than 35
       grams of methamphetamine. Pursuant to U.S.S.G. § 2D1.1, this quantity
       of drugs equates to a gross base offense level of 28 on guidelines.

The presentence report (PSR) stated that Lara’s total amount to be considered for
guideline purposes was 322.30 grams of meth. At sentencing, the government
presented witnesses and introduced evidence of other, uncharged criminal conduct
in the case, including Lara’s involvement in several controlled buys of meth. The
district court found Lara responsible for the PSR’s quantity, resulting in an increased
offense level and sentencing range.

       On appeal, Lara argues that the government breached paragraph 10 when at
sentencing, it introduced evidence of specific amounts and specific transactions
supporting the PSR’s quantity. To preserve this claim, Lara must have objected at
sentencing to the drug quantity evidence as breaching the agreement. United States
v. Smith, 590 F.3d 570, 576-77 (8th Cir. 2009), citing Puckett v. United States, 556
U.S. 129, 134-36 (2009). Although he generally objected to the evidence of the
PSR’s meth amount, he did not assert that the government violated the plea
agreement. Because his claim was not properly preserved for appeal, it is reviewed
for plain error. See id.

       Under plain-error review, this court can correct an error not raised at trial if
there is (1) error, (2) that is plain, and (3) that affects substantial rights. United States
v. Lovelace, 565 F.3d 1080, 1087 (8th Cir. 2009), quoting United States v. Keller,
413 F.3d 706, 710 (8th Cir. 2005). If all three conditions are met, this court may



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remedy the error only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.

       Interpretation and enforcement of plea agreements is reviewed de novo.
United States v. Stobaugh, 420 F.3d 796, 800 (8th Cir. 2005). Plea agreements are
essentially contracts between the government and the defendant. United States v.
DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). “[W]here a plea agreement is ambiguous,
the ambiguities are construed against the government.” Stobaugh, 420 F.3d at 800,
quoting United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc)
(alteration in original).

       This court must first determine whether there was an error – here, whether the
district court should have allowed the government to present evidence of the PSR’s
quantity. The government argues that it did not breach the plea agreement, because
the stipulation to drug quantity and offense level in paragraph 10 was only an
estimate, citing the Stobaugh case. The Stobaugh court found no breach where the
parties agreed that the guidelines calculations were only estimates, and a separate
paragraph of the plea agreement stated the government would provide “the entirety
of the defendant’s criminal activities” to the district court. Id.; see also United States
v. Peck, 496 F.3d 885, 890 (8th Cir. 2007) (no breach when the plea agreement did
not address the guidelines calculations). Here, paragraph 10 stipulated a specific
offense level and a specific range of meth – not estimates. Unlike the agreement in
Stobaugh, paragraph 10 prevented the government from advocating an amount or
offense level higher than that in paragraph 10.

      The government invokes other provisions in the plea agreement addressing
what the government can do at sentencing. Because the parties agree that this case
is controlled by DeWitt and Stobaugh, we analyze the plea agreement here by
comparing it to the agreements in those cases. The government first points to


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paragraph 15, which states that (1) the agreement does not promise a specific
sentence, (2) any discussion of a possible guideline range does not bind the court, and
(3) his actual range may be greater than contemplated by the parties. The plea
agreement in DeWitt contained such a general provision, but it did not override the
specific stipulation to drug quantity and base offense level. DeWitt, 366 F.3d at 668-
70.

      The government also relies on paragraph 16:

                     RELEVANT CONDUCT CONSIDERED

      At the sentencing hearing, the government will be permitted to bring to
      the Court’s attention, and the Court will be permitted to consider, all
      relevant information with respect to the defendant’s background,
      character and conduct, including the conduct that is the subject of this
      investigation for which he has not been charged up to the date of this
      Agreement, and/or which is the basis for any of the counts which will be
      dismissed pursuant to this agreement, as provided by § 1B1.3 of the
      Sentencing Guidelines.

The government contends, “Because Lara’s plea agreement contains no specific
provision that conflicts with this general provision concerning the presentation of
evidence relating to his relevant conduct, Lara’s challenge cannot be successful.”
This court in DeWitt specifically rejected this argument – an agreement’s general
provision for consideration of “all relevant conduct” does not trump a specific
stipulation to drug quantity and base offense level.

      It is true that paragraph 3 of the plea agreement says that “uncharged
      related criminal activity may be considered as ‘relevant conduct’
      pursuant to USSG § 1B1.3(a)(2) in calculating the offense level for the
      charge to which defendant will plead guilty.” We do not agree,
      however, that this general provision permits the government to advocate
      a drug quantity higher than the total quantity to which it had specifically
      agreed in another section of the plea agreement. Under ordinary rules
      of contract interpretation, we give effect to the specific drug quantity

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      and base offense level stipulations of paragraph 11 over the plea
      agreement's more general provisions relating to “relevant conduct.”


Id. at 670.


        Finally, in paragraph 20, the government reserved the right to: (1) “make all
facts known” to the court (subparagraph a); and (2) “call witnesses and introduce
evidence in support of the Presentence Report” (subparagraph b). These general
“introduce evidence” provisions are inconsistent with the specific stipulation to a
quantity and offense level, which prevails. See DeWitt, 366 F.3d at 670, quoting
United States v. Rivera, 357 F.3d 290, 295 (3d Cir. 2004) (“If the apparent
inconsistency is between a clause that is general and broadly inclusive in nature and
one that is more limited and specific in its coverage, the more specific term should
. . . be held to prevail over the more general term”) (internal quotations omitted).
Moreover, the plea agreement’s stipulation in paragraph 10, read with paragraph 20’s
right to introduce evidence, makes ambiguous the government’s right to introduce
evidence. “[W]here a plea agreement is ambiguous, the ambiguities are construed
against the government.” Stobaugh, 420 F.3d at 800.


       “Where the government stipulates to a drug quantity and a base offense level,
it may not then initiate an effort at the sentencing hearing to obtain a greater
sentence. . .” DeWitt, 366 F.3d at 671. The government protests that it did not
initiate the introduction of evidence in this case. When Lara objected to the PSR’s
amount, the court asked the government for a response. The government requested
to present an agent’s testimony to “allow the Court to have all of the information to
make the decision whether or not to affirm or deny the objection with regard to that.”
The court’s sole statement was, “You may proceed.” The district court did not direct
the government to present the evidence. Cf. id. at 671 (“there would have been no
breach of the plea agreement if the district court had directed the government to
present evidence that contradicted the stipulation.”) (emphasis in original).

                                         -5-
       The government’s presentation of evidence supporting the PSR’s quantity
breached the plea agreement. The district court plainly erred in allowing the
government to introduce evidence of the PSR’s quantity. Lara’s substantial rights
were affected because his top/bottom guidelines range was increased by 30/37
months, his 130-month sentence is not within the plea agreement’s guidelines range,
and he likely received a longer prison sentence. See United States v. Granados, 168
F.3d 343, 346 (8th Cir. 1999) (holding that a defendant’s substantial rights are
affected when the government breaches a plea agreement, causing his prison sentence
to be longer than it should have been under the plea agreement). As this error
seriously affects the fairness, integrity, or public reputation of judicial proceedings,
this court vacates and remands.


                                * * * * * * *


      Because the government breached the plea agreement, the judgment must be
vacated, and the case remanded to the district court for resentencing before a different
judge. DeWitt, 366 F.3d at 672, citing Brunelle v. United States, 864 F.2d 64, 65
(8th Cir. 1988) (per curiam); and United States v. McCray, 849 F.2d 304, 306 (8th
Cir.1988) (per curiam). The reassignment “is in no sense to question the fairness of
the sentencing judge.” Id., quoting Santobello v. New York, 404 U.S. 257, 263
(1971).
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