                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-2532
                                  ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal From the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Dwight Fowler,                         *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: February 16, 2006
                                Filed: April 17, 2006
                                 ___________

Before BYE, HEANEY, and MELLOY, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.

      Dwight Fowler pled guilty to five counts of bank robbery. The district court
imposed a sentence of 151 months of imprisonment, to be followed by three years of
supervised release. Fowler appeals. We hold that the government materially
breached its plea agreement by advocating for the imposition of the career-offender
enhancement, in spite of its promise to recommend that the district court calculate
Fowler’s sentence based on an offense level that did not include that enhancement.
Accordingly, we reverse and remand.
                                 BACKGROUND

       From the middle of May through late June of 2004, Fowler committed a series
of bank robberies in St. Louis, Missouri.1 He was charged by indictment filed
September 2, 2004 with five counts of bank robbery, in violation 18 U.S.C. § 2113(a).
Fowler and the government subsequently entered into plea negotiations, and on
February 4, 2005, a binding plea agreement was memorialized and signed by Fowler,
his attorney, and an Assistant United States Attorney. The agreement specifically
contemplated a number of sentencing issues, including Fowler’s estimated offense
level. According to that portion of the agreement:

      [T]he parties have addressed United States Sentencing Guidelines
      applications to this case and have agreed to these recommendations.
      The parties agree that these recommendations fairly and accurately set
      forth the Guidelines calculations which the parties believe the Court
      should use in determining the defendant’s sentence.

             The parties acknowledge that the Guidelines application
      recommendations set forth herein are the result of negotiations between
      the parties as to the Guidelines applications they address; that these
      negotiated recommendations . . . led to the guilty plea in this case; and
      that each party has a right to rely upon and hold the other party to the
      recommendations at the time of sentencing.

(Plea Agreement at 2-3.) The section of the agreement entitled “GUIDELINES
RECOMMENDATIONS,” detailed the version of the guidelines manual the parties
recommended, the applicable base offense level for the conduct, and what


      1
      On May 15, 2004, Fowler robbed U.S. Bank of $5,360. On May 29, 2004, he
robbed Commerce Bank of $5,600. On June 18, 2004, Fowler robbed Central West
End Bank of $3,217. On June 26, 2004, Fowler robbed yet another U.S. Bank of
$2,156. Finally, Fowler robbed Bank of America of $3,470 on June 29. He was
apprehended on July 3, 2004.

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enhancements applied. (Id. at 6-7). This section concluded, “[b]ased on these
recommendations, the parties estimate that the Total Offense Level is 25.” (Id. at 7.)
The district court accepted Fowler’s guilty plea that same day, and made the plea
agreement a part of the record.

       The plea agreement did not recommend imposition of the career-offender
enhancement. Nonetheless, the presentence report (PSR) did, based on convictions
stemming from a series of armed robberies between October 22 and October 30,
1986. Fowler objected to the enhancement, which would have had the effect of
raising both his criminal history category and his offense level. See USSG § 4B1.1.
In his objection, Fowler argued that his prior convictions were “related,” as that term
is used in guidelines section 4A1.2(a)(2), and thus ought to be treated as one
sentence. He also noted that the plea agreement between himself and the government
did not recommend application of the career-offender enhancement. On the contrary,
the agreement recommended an offense level that reflected no such enhancement.

      In response to Fowler’s objections, the government filed a memorandum with
the court disputing that it had agreed the career-offender enhancement was
inapplicable. The government devoted the majority of this memorandum to
supporting the PSR’s position that the enhancement should apply. Subsequently,
Fowler filed a sentencing memorandum, asserting that the government was
“foreclosed under the terms of the plea agreement from arguing in support of the
Probation Office’s recommendation for a higher offense level than the parties’
recommended offense level of 25.” (Def.’s Sentencing Mem. at 1.) Fowler argued
at length in this memorandum that allowing such conduct would sanction the
government’s breach of its plea agreement. (See id. at 8-14.)

       At the sentencing hearing, Fowler reasserted his objection to the career-
offender enhancement. Again, the government argued for the enhancement. The
district court accepted the government’s argument, and overruled Fowler’s objection.

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The court then imposed a sentence of 151 months of imprisonment, to be followed
by three years of supervised release. This appeal followed.

                                    ANALYSIS

       Although Fowler raises a number of issues related to his sentence, we address
only the dispositive issue of whether the government breached the plea agreement.2
Generally speaking, our circuit views plea agreements as contracts, requiring the
parties to fulfill their obligations under that contract. United States v. Andis, 333
F.3d 886, 890 (8th Cir. 2003) (en banc); United States v. Van Thournout, 100 F.3d
590, 594 (8th Cir. 1996). A plea agreement involves matters of constitutional
significance, however, and the failure of the government to abide by the promises
made therein violates a defendant’s due process rights. Van Thournout, 100 F.3d at
594; see also United States v. McCray, 849 F.2d 304, 305 (8th Cir. 1988) (per
curiam) (“Once a plea has been entered and it ‘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 a promise must be fulfilled.’” (quoting Santobello
v. New York, 404 U.S. 257, 262 (1971))).

       The plea agreement in this case clearly bound both the government and Fowler
to recommend an adjusted offense level of 25 for his conduct. Instead, once the PSR
calculated Fowler’s adjusted offense level to be 29 due to application of the career-


      2
        We reject the government’s contention that Fowler has not preserved this issue
for review. Fowler raised the issue of the plea agreement in his objections to the
PSR, and dedicated a good deal of his subsequent sentencing memorandum to his
assertion that the government was in breach by advocating for a sentence different
than as stated in the plea agreement. Thus, he has preserved it for review. Accord
United States v. Piggie, 316 F.3d 789, 793 n.6 (8th Cir. 2003) (noting that a clearly
stated basis for objections to sentencing calculations will preserve the issue for
appellate review).

                                         -4-
offender enhancement, the government followed suit. Both in its written and oral
presentation to the court, the government actively advocated for an outcome different
from the one it had promised Fowler. At oral argument, the government suggested
it felt compelled to state its view because the district court asked for it at sentencing.
First, we note that this assertion fails to explain the government’s written response
to Fowler’s objections to the PSR, supporting the PSR’s career-offender theory. The
government has directed us to nothing in the record that required it to submit this
response. Second, as to the sentencing hearing, the fact that the court asked for the
government’s position does not excuse the government for failing to abide by the plea
agreement. See, e.g., United States v. Mendoza-Alvarez, 79 F.3d 96, 98 (8th Cir.
1996) (finding the government to have breached a plea agreement by stating its
position on a guidelines issue when it promised to remain silent despite the court’s
request for the government’s views); accord Van Thournout, 100 F.3d at 596 (“[P]lea
agreements often impose duties on the government over and above those imposed by
statute.”). Thus, we are firmly convinced that the government’s conduct violated the
terms of its agreement.

       Where, as here, the prosecutor has materially breached the plea agreement, the
determination of the appropriate remedy is typically left to the discretion of the court.
Santobello, 404 U.S. at 262-63. Among the options available to the court are
permitting the defendant to be resentenced before a different judge consistent with
the terms of the plea agreement (which, in this case, would require the government
to fulfill its obligation to recommend a total offense level of 25), or permitting the
defendant to withdraw his plea of guilty. Id. at 263; see also United States v.
McGovern, 822 F.2d 739, 746 (8th Cir. 1987). Our court has, in some cases,
determined which remedy is appropriate on its own accord. See, e.g., Margalli-
Olvera v. INS, 43 F.3d 345, 354-55 (8th Cir. 1994) (remanding an order of
deportation to the INS for specific performance of its agreement to remain silent on
the issue of whether the petitioner was subject to deportation). We are not so
required, however, United States v. Gomez, 271 F.3d 779, 782 (8th Cir. 2001), and

                                           -5-
choose not to do so in this case, accord Santobello, 404 U.S. at 262-63 (remanding
to state court for its determination of what remedy to apply to cure the prosecution’s
breach of a plea agreement). Rather, we remand for the district court to determine,
consistent with this opinion, the appropriate remedy to impose in the first instance.
                          ______________________________




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