PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5615

JAMES MCQUEEN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-94-291)

Argued: December 6, 1996

Decided: March 6, 1997

Before RUSSELL and MOTZ, Circuit Judges, and MICHAEL,

Senior United States District Judge for the Western District of

Virginia, sitting by designation.

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Vacated and remanded by published opinion. Judge Russell wrote the

opinion, in which Judge Motz and Senior Judge Michael joined.

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COUNSEL

ARGUED: Michael Smith Scofield, LAW OFFICES OF MICHAEL

SCOFIELD, Charlotte, North Carolina, for Appellant. John Michael

Barton, Assistant United States Attorney, Columbia, South Carolina,

for Appellee. ON BRIEF: John J. Cacheris, LAW OFFICES OF

MICHAEL SCOFIELD, Charlotte, North Carolina, for Appellant.
Margaret B. Seymour, United States Attorney, Columbia, South Carolina, for Appellee.

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OPINION

RUSSELL, Circuit Judge:

James McQueen appeals his two concurrently-running sentences

from his convictions for conspiracy to distribute heroin, cocaine, and

crack cocaine, marijuana, and various prescription pills, and for making a material false declaration before a grand jury. McQueen asserts

that the Government's breach of its plea agreement warrants remanding his case for resentencing. Because the Government violated the

terms of the plea agreement, we vacate McQueen's sentence and

remand the case for specific performance of that agreement.

I.

In the mid-1980s, James McQueen began delivering heroin for

Frank and Leroy Jones, Jr., kingpins of a drug distribution organization in South Carolina. By the early 1990s, McQueen's responsibilities included purchasing and delivering marijuana, and assisting

Frank Jones in distributing prescription pills. McQueen's drug activities finally led to his arrest in March 1994.

One month after McQueen's arrest, a federal grand jury issued a

superseding indictment charging him with conspiracy to distribute

heroin, cocaine, crack cocaine, marijuana, and various prescription

pills in violation of 21 U.S.C. § 846 and with making a material false

declaration before a grand jury in violation of 18 U.S.C. § 1623.

McQueen's perjury charge stemmed from his appearance before an

earlier federal grand jury. At that appearance he had denied any

knowledge of the Jones' illegal organization and any personal

involvement therein.

At McQueen's trial, the jury found him guilty of the perjury count.

While the jury continued deliberating on the conspiracy count, the

Government and McQueen entered into an oral plea agreement, which

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was never reduced to writing. Pursuant to the plea agreement, McQueen pled guilty to the conspiracy charge. As gleaned from the transcript of the guilty plea hearing, the Government promised to (1) recommend that McQueen receive a sentence of no more than 63

months; and (2) recommend that McQueen receive a two-level adjustment for acceptance of responsibility.

At McQueen's sentencing hearing, the Government failed to honor

both of its promises under the plea agreement. In fact, when the district court determined McQueen had not accepted responsibility and

his sentence fell within the applicable guideline range of 78-90

months, the Government said it could not ask the court to give McQueen 63 months because it believed there was no factual or legal

basis for a downward departure. Furthermore, the Government stated

that when it had agreed to recommend a sentence of 63 months, it had

assumed "that [McQueen] would get acceptance of responsibility." In

other words, the Government had pre-calculated the acceptance of

responsibility departure into the 63 month agreement. Consequently,

McQueen received 78 months imprisonment on the drug conspiracy

charge and 60 months imprisonment on the perjury count, the sentences to run concurrently.

II.

McQueen asserts that the Government's failure to argue the plea

agreement terms to the sentencing court amounted to a breach of the

plea agreement. The Government concedes (and the record of evidence supports) that it breached the plea agreement by not keeping

either promise. Because McQueen raises this issue for the first time

on appeal, however, we must affirm the sentence imposed by the district court unless we find plain error.1 

The interpretation of plea agreements is guided by contract law,

and parties to the agreement should receive the benefit of their bargain.2

Because a defendant's fundamental and constitutional rights are

implicated when he is induced to plead guilty by reason of a plea

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1 United States v. Fant, 974 F.2d 559, 565 (4th Cir. 1992).

2 United States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993).

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agreement, our analysis of the plea agreement or a breach thereof is

conducted with greater scrutiny than in a commercial contract.3 When

reviewing a breached plea agreement for plain error, therefore, we

must establish whether the breach was "so obvious and substantial

that failure to notice and correct it affect[ed] the fairness, integrity or

public reputation of the judicial proceedings." 4

McQueen entered into an oral plea agreement with the Government

that induced him to plead guilty to the conspiracy charge against him.

At the sentencing hearing, however, the Government eschewed its

obligations under the plea agreement. The Government now claims it

"unintentionally" failed to abide by its promises because the Assistant

United States Attorney ("AUSA") was unable to recall the exact terms

of the plea agreement for two reasons. First, the plea was never

reduced to writing. Second, he did not have a copy of the transcript

from the guilty plea hearing. This court will not tolerate such excuses,

particularly when the record of evidence reveals that the same AUSA

who bargained for the plea agreement was present at both the guilty

plea hearing and the sentencing hearing. The Government's failure to

argue the terms of the oral plea agreement to the district court at the

sentencing hearing constituted a breach of the plea agreement. And

because violations of plea agreements on the part of the government

serve not only to violate the constitutional rights of the defendant, but

directly involve "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,"5 we hold that the Government's breach constituted plain error.

Equally as troubling as the breach itself is the cursory manner in

which the Government recited the oral plea into the record at the

guilty plea hearing. The incompleteness of its recitation prompts us

to question why the Government failed to reduce the plea agreement

to writing upon its making. When a defendant's fundamental and con-

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3 Id.

4 Fant, 974 F.2d at 565 (quoting United States v. Navejar, 963 F.2d

732, 734 (5th Cir. 1992)).

5 United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (quoting

United States v. Carter, 454 F.2d 426, 428 (4th Cir. 1992)).

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stitutional rights hang in the balance, we hold that justice requires and

common sense dictates memorializing the terms of the plea agreement. Because the government bears a greater responsibility than the

defendant for inaccuracies and ambiguities in a plea agreement, we

believe it behooves the government to reduce all oral pleas to writing.6

Accordingly we suggest that lower courts require all future plea

agreements be reduced to writing. At the beginning of the sentencing

hearing, it would be incumbent upon the prosecutor and the defendant

to apprise the court of the existence of the plea agreement and to submit each document to the court as a part of the official record. The

time involved in memorializing the plea agreement is minimal as

compared to the time wasted on appeal. The effort involved promotes

not only the efficient administration of justice, but serves to safeguard

the integrity and fairness of the plea process.

III.

Because the Government committed plain error in breaching the

plea agreement, we grant McQueen the requested specific performance and remand his case to a different district judge for resentencing.7

At the new sentencing, the district judge is to ensure the parties accurately and completely reduce the earlier oral plea agreement to writing. The Government will then be required to satisfy its obligations

under the written agreement.

VACATED AND REMANDED

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6 Id.

7 United States v. Peglera, 33 F.3d 412, 415 (4th Cir. 1994).

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