REVISED MARCH 26, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20542

UNITED STATES OF AMERICA 

Plaintiff - Appellee

v.

CHRISTOPHER PURSER, 

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Christopher Purser pled guilty to a charge of conspiracy to commit wire

fraud in violation of 18 U.S.C. § 1349 and appeals his sentence on several

grounds. The Government contends that he is barred from doing so because of

an appeal waiver contained within his plea agreement. We enforce the appeal

waiver and dismiss the appeal.

I

Christopher Purser was indicted for several finance-related crimes and

ultimately pled guilty to Count One, which charged him with conspiracy to

commit wire fraud in violation of 18 U.S.C. § 1349. As part of his plea

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2014

Lyle W. Cayce

Clerk

 Case: 12-20542 Document: 00512573587 Page: 1 Date Filed: 03/26/2014
No. 12-20542

agreement, Purser agreed “to waive the right to appeal the sentence imposed or

the manner in which it was determined.” However, he reserved the right to

appeal a sentence above the statutory maximum or one resulting from either an

upward departure or upward variance. In the plea agreement, he acknowledged

that the district court had not yet determined his sentence, that his plea was not

induced by any estimates of his possible sentencing range, and that the

Government had not made “any promise or representation” concerning the

sentence that he would receive.

In exchange, the Government agreed to (1) move to dismiss the remaining

counts of the indictment; (2) not oppose Purser’s request for a 2-level downward

adjustment for acceptance of responsibility;1(3) request, if appropriate, an

additional 1-level downward adjustment;2(4) not seek an upward departure or

variance, and (5) recommend a sentence at the “low end of the Sentencing

Guidelines.” Finally, the Government agreed to the following conditions in

Paragraph 13(f):

The United States and the defendant will recommend

to the Court and the United States Probation office that

the following aspects of U.S.S.G. § 2B1.1 should apply:

1. Base level offense is 7, as per U.S.S.G.

§ 2B1.1(a)(1);

2. The Specific Offense Characteristic of

§ 2B1.1(b)(1)(J) applies;

3. The Specific Offense Characteristic of

§ 2B1.1(b)(2)(B) applies;

4. The Specific Offense Characteristic of

§ 2B1.1(b)(8)(C) applies; and

5. The Specific Offense Characteristic of

§ 2B1.1(b)(9) applies.

1 See U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (2011).

2

Id. § 3E1.1(b).

2

 Case: 12-20542 Document: 00512573587 Page: 2 Date Filed: 03/26/2014
No. 12-20542

But the Government specifically reserved, inter alia, its right to “set forth or

dispute sentencing factors or facts material to sentencing.”

The original PSR was made available on April 24, 2012. The original PSR

had a total offense level of 37. The offense level was calculated using the base

offense level of 7;3increased by 18 levels because the loss exceeded $2,500,000;4

increased by 4 levels because there were more than 50, but less than 250,

victims;5

increased by 2 levels because the offense involved a violation of a prior

judicial or administrative order;6

increased by 2 levels because the scheme was

relocated to another jurisdiction and partly committed outside the United

States;7increased by 2 levels because Purser abused a position of trust;8and

increased by 2 levels for obstruction of justice.9 Combined with Purser’s criminal

history category of III, this yielded a Guidelines range of 262–327 months.

The Government initially objected that Purser should not have received

a 4-level increase under § 2B1.1(b)(2)(B), but rather a 6-level increase under

§ 2B1.1(b)(2)(C), because the offense involved 250 or more victims. The

Government subsequently withdrew this objection, noting that as part of the

plea agreement it had agreed that § 2B1.1(b)(2)(B) was appropriate, and urged

the application of the lesser enhancement. The Government also objected that

Purser should have received a 4-level increase pursuant to § 3B1.1(a) because

3

Id. § 2B1.1(a)(1).

4

Id. § 2B1.1(b)(1)(J).

5

Id. § 2B1.1(b)(2)(B).

6

Id. § 2B1.1(b)(9)(C).

7

Id. § 2B1.1(b)(10)(A); § 2B1.1(b)(10)(B).

8

Id. § 3B1.3.

9

Id. § 3C1.1.

3

 Case: 12-20542 Document: 00512573587 Page: 3 Date Filed: 03/26/2014
No. 12-20542

he was an organizer or leader of a criminal activity involving five or more

participants. 

Purser objected that he should have received a 2-level decrease under

§ 3B1.2 due to a minor role in the conspiracy. He also objected to the 2-level

increase due to an abuse of a position of trust and the 2-level increase due to

obstruction of justice.

The revised PSR responded to these objections. As to the § 2B1.1(b)(2)(B)

and § 2B1.1(b)(2)(C) issue, the probation officer acknowledged that the

Government withdrew its objection, but noted that the plea agreement only

bound the Government and Purser. As a result, she recommended a 6-level

increase anyway because the offense involved 250 or more victims—adding 2

levels from the previous 4-level increase. The probation officer also agreed with

the Government and recommended a 4-level increase under § 3B1.1(a) because

Purser was an organizer or leader—adding 4 more levels. The probation officer

rejected Purser’s proposed adjustment under § 3B1.2 for a minor role. She also

rejected Purser’s objection to the abuse of trust adjustment. But the probation

officer did agree that the 2-level adjustment for obstruction of justice was

inapplicable—subtracting 2 levels. Finally, she credited Purser with a 3-level

acceptance of responsibility adjustment—subtracting another 3 levels.

Therefore, the total offense level was 38.

Purser again objected: this time, to the 6-level increase under

§ 2B1.1(b)(2)(C) and the 4-level increase under § 3B1.1(a); he reasserted a claim

to the minor role adjustment under § 3B1.2; and he renewed his objection to the

abuse of trust adjustment. Purser argued that the Government had breached the

plea agreement by recommending a § 2B1.1(b)(2)(C) adjustment, that its

withdrawal of that recommendation was not sufficient to cure the breach, and

that Purser was entitled to specific performance of the plea agreement. At the

sentencing hearing, Purser also argued that the Government had breached an

“implicit” commitment not to seek further adjustments outside of those specified

4

 Case: 12-20542 Document: 00512573587 Page: 4 Date Filed: 03/26/2014
No. 12-20542

in the plea agreement by arguing in favor of the § 3B1.1(a) enhancement.

Finally, Purser filed a motion for downward variance arguing that his prison

exposure was twice that of his co-defendants, including Steve Mills, his former

boss.

At the sentencing hearing, the district court rejected the minor role

adjustment under § 3B1.2 that Purser sought. However, the court did sustain

the objection to the abuse of trust adjustment—thus, reducing the offense level

by 2 levels. As to the two theories of plea breach, the district court rejected both.

With regard to the argument that the Government breached the plea agreement

by initially seeking a 6-level § 2B1.1(b)(2)(C) enhancement—an enhancement the

Government admitted it had mistakenly sought and now urged against at

sentencing—the district court decided to err on the side of caution:

THE COURT: All right. In order to avoid any

argument that the Government breached the plea

agreement by its initial objection to Paragraph 59, I’m

going to rule that the enhancement for number of

victims should be plus four.

My concern is that the Government’s original

objection may have motivated closer scrutiny by the

probation officer to the number of victims, although the

addendum disavows that and says that the increase

was based solely on the probation officer’s own review

of the evidence.

I think in order to be absolutely careful, the

increase for the number of victims will be plus four

instead of plus six. That should eliminate any possible

objection that the Government has breached the plea

agreement by urging a greater number of victims.

Thus, the court applied the 4-level adjustment under § 2B1.1(b)(2)(B), not the 6-

level adjustment under § 2B1.1(b)(2)(C)—reducing the offense level by another

2 levels. As for the argument that the Government breached the plea agreement

by seeking a § 3B1.1(a) adjustment, the district court stated that “nothing in

Paragraph 13(f) deals with an aggravating role adjustment.” Accordingly, the

5

 Case: 12-20542 Document: 00512573587 Page: 5 Date Filed: 03/26/2014
No. 12-20542

court concluded that there was “no credible argument that the Government

breached the plea agreement by requesting an increase for the Defendant’s role

in the offense.” The total offense level was now 34. The court sentenced Purser

at the bottom of the applicable Guidelines range to 188 months of imprisonment.

Finally, the court denied the motion for downward variance because it was

“persuaded that the facts of this case do not justify a variance.”

Purser timely filed a notice of appeal, and the present appeal follows.

II

In his plea agreement, Purser “agree[d] to waive the right to appeal the

sentence imposed or the manner in which it was determined.” The plea

agreement does allow him to appeal “a sentence imposed above the statutory

maximum, any upward departure, or upward variance.” However, since the

present appeal does not fit within this narrow exception, the first question is

whether the appeal waiver bars Purser’s current appeal. At oral argument, the

Government seemed to take the position that it would be willing to forgo the

assertion of the appeal waiver clause, if this Court could reach the merits in its

favor. However, in supplemental briefing submitted after the oral argument, it

is clear that the Government is still asserting the appeal waiver.

Purser argues that the appeal waiver is void because the Government

breached the plea agreement. The Government argues that there was no

breach.10 An “alleged breach of a plea agreement may be raised despite a waiver

10 The Government also responds in two other ways. First, the Government argues that

the plea agreement was knowing and voluntary. A defendant may waive his right to appeal

as part of a valid plea agreement if the waiver is knowing and voluntary. United States v.

McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Thus, to determine whether an appeal is barred

by an appeal waiver provision in a plea agreement, we would usually consider whether the

waiver (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on

the plain language of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).

During Purser’s plea hearing, the district court reviewed the appeal waiver contained in the

plea agreement, and Purser stated that he understood the waiver and agreed to it. He also

stated that no one had threatened him or forced him to plead guilty. Indeed, in his briefs,

Purser does not contend that his plea was unknowing or involuntary. Second,the Government

also argues that the appeal does not fit within the narrow exception of challenging the

6

 Case: 12-20542 Document: 00512573587 Page: 6 Date Filed: 03/26/2014
No. 12-20542

provision.”11 Thus, we can properly reach the first question of whether the

Government breached the plea agreement during the course of the proceedings

below.

Whether the Government has breached a plea agreement is a question of

law that this Court reviews de novo.12 As the Supreme Court has made clear,

“when a plea 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 promise must be fulfilled.”13In deciding whether the Government violated

a plea agreement, this Court considers “whether the Government’s conduct was

consistent with the defendant’s reasonable understanding of the agreement.”14

The plea agreement is construed strictly against the Government as drafter of

the agreement.

15 The defendant has the burden of demonstrating the underlying

facts that establish the breach by a preponderance of the evidence.16

Purser argues that the Government breached the plea agreement in two

ways. First, the Government explicitly breached the plea agreement when it

adequacy of the factual basis of the conviction. “[A] valid waiver of appeal does not bar review

of a claim that the factual basis for a guilty plea fails to establish the essential elements of the

crime of conviction.” United States v. Trejo, 610 F.3d 308, 312–13 (5th Cir. 2010). But, in his

briefs, Purser does not claim that he is attacking the factual basis for the guilty plea.

Therefore,the Government’s points are well-taken. But neither goes to the heart ofthe matter.

Purser’s argument is neither that the plea was not knowing or voluntary nor that the factual

basis is inadequate. Rather he argues that there was a breach of the plea agreement.

11 United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011) (internal quotation

marks omitted) (citation omitted). Indeed, when the Government breaches a plea agreement,

the defendant is “necessarily released from an appeal waiver provision contained therein.”

United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).

12 United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005).

13 Santobello v. New York, 404 U.S. 257, 262 (1971).

14 Munoz, 408 F.3d at 226 (internal quotation marks omitted) (citation omitted).

15 United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008).

16 United States v. Roberts, 624 F.3d 241, 246 (5th Cir. 2010).

7

 Case: 12-20542 Document: 00512573587 Page: 7 Date Filed: 03/26/2014
No. 12-20542

objected that § 2B1.1(b)(2)(C) should have applied. Second, the Government

implicitly breached the plea agreement when it argued that the 4-level organizer

or leader adjustment under § 3B1.1(a), which was not mentioned in the plea

agreement, should have applied. 

Purser’s first theory of plea agreement breach relies on the fact that the

Government initially objected and argued that a 6-level increase under

§ 2B1.1(b)(2)(C) should have applied, rather than the 4-level increase under

§ 2B1.1(b)(2)(B). Under the plea agreement, the Government had agreed to the

4-level increase. Purser acknowledges that the Government withdrew its

objection, but nevertheless contends that the initial instance of the breach voided

the appeal waiver notwithstanding the withdrawal. The Government responds

in several ways. First, to its eyes, the objection and the withdrawal viewed

together do not constitute a breach. Second, the Government argues that any

breach was harmless because the district court specifically stated that it would

follow the plea agreement recommendation of a 4-level increase under

§ 2B1.1(b)(2)(B), not the 6-level increase recommended by the revised PSR.

Third, the Government argues that even if the objection is viewed as a breach,

that breach was later cured by the withdrawal of the objection.

Purser’s argument that a breach initially occurred succeeds. The

defendant’s reasonable understanding of the agreement was that the

Government would recommend to the district court and the probation officer

that § 2B1.1(b)(2)(B) would apply and that it would not deviate from that

recommendation. By initially advocating for the higher adjustment found in

§ 2B1.1(b)(2)(C), the Government contradicted the express language found in the

plea agreement. As a result, Purser was deprived of the benefit for which he

bargained: namely, that the Government would present a united front that

8

 Case: 12-20542 Document: 00512573587 Page: 8 Date Filed: 03/26/2014
No. 12-20542

§ 2B1.1(b)(2)(B) applied.

17 We do not agree with the Government’s contention

that the episode viewed in its entirety does not constitute a breach. When the

Government acts contrary to the express terms of the plea agreement, it has

breached the plea agreement.18 Similarly, we do not find our prior precedent

distinguishable on the grounds that in those cases the breach took place at the

sentencing hearing itself,

19 whereas here the breach occurred before the hearing.

The plea agreement’s express language states that the Government would

“recommend to the Court and the United States Probation office” the agreed

upon conditions. Therefore,it is of no moment that the Government breached the

plea agreement before the sentencing hearing, because the Government still

breached the express terms of the plea agreement.

Next, we turn to the Government’s contention that the objection was

ultimately harmless since it withdrew the objection and the district court took

special notice of the problematic nature of the objection. Indeed, it was in order

to avoid any arguments about plea agreement breach, that the district court

imposed the § 2B1.1(b)(2)(B) enhancement. Whether harmlessness plays any

role where, as here, the defendant has objected to a breach of the plea agreement

and preserved the issue is a question of some complexity.

To begin, in Santobello v. New York,

20

the Supreme Court clarified that the

essential inquiry does not focus on the harmlessness of the breach of a plea

17 Cf. United States v. Grandinetti, 564 F.2d 723, 726 (5th Cir. 1977) (“[T]he defendant

offers his plea not in exchange for the actual sentence or impact on the judge, but for the

prosecutor’s statements in court. If these statements are not adequate (as opposed to

successful), then the agreement has not been fulfilled.”).

18 United States v. Saling, 205 F.3d 764, 767 (5th Cir. 2000) (finding a breach where

“the prosecutor’s statements to the trial judge blatantly violated the plea agreement’s express

terms”).

19 See id. at 766 (breach occurred at the sentencing hearing); Munoz, 408 F.3d at 225

(same).

20

404 U.S. 257 (1971).

9

 Case: 12-20542 Document: 00512573587 Page: 9 Date Filed: 03/26/2014
No. 12-20542

agreement. In Santobello, while the original prosecutor had agreed not to make

any sentencing recommendation as part of the plea agreement,21the new

prosecutor recommended the maximum sentence at the sentencing hearing.22

The sentencing judge chose to sentence the defendant to the maximum sentence,

and in doing so, declared that he was not affected in any way by the new

prosecutor’s breach of the plea agreement.23 The Supreme Court acknowledged

that it had “no reason to doubt” this assurance.24 But the Supreme Court refused

to reach the question of whether the sentencing judge was influenced by the plea

agreement and its subsequent breach.25Instead, the Supreme Court vacated the

conviction and remanded the case in order to serve “the interests of justice and

[in] appropriate recognition of the duties of the prosecution in relation to

promises made in the negotiation of pleas of guilty.”26In other words, the

occurrence of the breach itself was enough to lead to vacatur of the judgment,

notwithstanding a harmlessness analysis.

We have previously read Santobello to foreclose a harmlessness inquiry.

In United States v. Valencia,

27 we were faced with an argument that harmless

error analysis should apply in the case of a preserved objection to a plea

agreement breach.28 However, we rejected the attempt to impose a harmless

21

Id. at 258.

22

Id. at 259.

23

Id.

24

Id. at 262.

25

Id. at 262–63.

26

Id. at 262.

27

985 F.2d 758 (5th Cir. 1993).

28

Id. at 761.

10

 Case: 12-20542 Document: 00512573587 Page: 10 Date Filed: 03/26/2014
No. 12-20542

error inquiry where an objection about plea agreement breach has been

preserved:

The interests of justice and standards of good faith in

negotiating plea bargains require reversal where a plea

bargain is breached. A lesser standard would permit

the government to make a plea bargain attractive to a

defendant, subsequently violate the agreement and

then argue harmless error, thereby defrauding the

defendant.29

We have continued to reject the imposition of a harmless error inquiry in our

other cases since Valencia.

30

 Our decision in United States v. Hooten31 is not to

the contrary. In that case, we found that the government had not breached the

plea agreement.32 Although we stated that even if we had found a breach, such

a finding would “not automatically require resentencing,”33this was dicta and

not part of the holding of that case.

Most of our sister circuits have similarly rejected the use of a

harmlessness inquiry in situations of a plea agreement breach where the error

has been preserved.34 We do note that many of these circuits have also adopted

29

Id. (citation omitted).

30 See United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“[T]he government

appears to be proposing some kind of harmless error excuse. . . . [We] reject this attempt by

the government to excuse its action as harmless.”); Saling, 205 F.3d at 766–67 (“If a breach

has in fact occurred, the sentence must be vacated without regard to whether the judge was

influenced by the government’s actions.”).

31

942 F.2d 878 (5th Cir. 1991).

32

Id. at 884.

33

Id. (quoting United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)).

34 United States v. Clark, 55 F.3d 9, 13–14 (1st Cir. 1995); United States v. Vaval, 404

F.3d 144, 154–55 (2d Cir. 2005); United States v. Martin, 788 F.2d 184, 187 (3d Cir. 1986);

United States v. King, Nos. 91-5338, 91-5339, 1992 WL 75161, at *2 (4th Cir. Apr. 16, 1992)

(per curiam); United States v. Askew, No. 97-6278, 1999 WL 236187, at *2 (6th Cir. Apr. 14,

1999) (per curiam); United States v. Diaz-Jimenez, 622 F.3d 692, 694–97 (7th Cir. 2010);

United States v. Alcala-Sanchez, 666 F.3d 571, 577 (9th Cir. 2012); United States v. VanDam,

11

 Case: 12-20542 Document: 00512573587 Page: 11 Date Filed: 03/26/2014
No. 12-20542

a mitigating doctrine that stands in some contrast to the no-harmlessness

doctrine. Under this mitigating doctrine, there is no harmlessness inquiry only

in cases where there is a material breach of the plea agreement.35In other

words, minor breaches do not count. We similarly once held that a breach of a

plea agreement was immaterial.36 However, since the breach in this case cannot

be characterized as immaterial, this mitigating doctrine does not apply.

Finally, most recently in Puckett v. United States,

37 the Supreme Court

was faced with a breach of a plea agreement to which the defendant had not

objected at the district court.38 The Supreme Court held that this was a case of

a forfeited error,39 and as a result, held that plain error review was the

appropriate standard.40 Obviously, that is not the case here where Purser clearly

objected to the breach of the plea agreement and preserved the error. But

Puckett’s assessment of Santobello is instructive. According to Puckett,

“Santobello did hold that automatic reversal is warranted when objection to the

Government’s breach of a plea agreement has been preserved.”41 But the

Supreme Court clarified that this rule was not due to the fact that a plea

agreement breach is a structural error—which are not susceptible or amenable

493 F.3d 1194, 1202 (10th Cir. 2007); United States v. Hallock, 530 F. App’x 875, 882 (11th Cir.

2013) (per curiam). But see United States v. E.V., 500 F.3d 747, 754–55 & 755 n.13 (8th Cir.

2007) (adopting a harmlessness inquiry).

35 Clark, 55 F.3d at 13 n.3; Vaval, 404 F.3d at 155; Diaz-Jimenez, 622 F.3d at 694–97;

VanDam, 493 F.3d at 1202 & n.5.

36 United States v. MacInnis, No. 94-20627, 1995 WL 371137, at *5 (5th Cir. June 7,

1995) (per curiam).

37

556 U.S. 129 (2009).

38

Id. at 131.

39

Id. at 138.

40

Id. at 143.

41

Id. at 141.

12

 Case: 12-20542 Document: 00512573587 Page: 12 Date Filed: 03/26/2014
No. 12-20542

to harmless error analysis—but rather because of a “policy interest in

establishing the trust between defendants and prosecutors that is necessary to

sustain plea bargaining—an ‘essential’ and ‘highly desirable’ part of the criminal

process.”42

 In a footnote, the majority opinion explicitly refused to confront the

question of whether Santobello’s “automatic-reversal rule has survived [the

Supreme Court’s] recent elaboration of harmless-error principles.”43 Therefore,

Puckett reads Santobello as, at least currently, foreclosing any harmless error

analysis of a plea agreement breach. Therefore, we cannot agree that

harmlessness plays any role in the inquiry where as here there has been a

breach of the plea agreement and the objection to that breach was properly

preserved.

We agree with the Government’s contention that the breach of the plea

agreement was adequately cured in this case. While we have previously rejected

arguments that the government successfully cured a plea agreement breach,44

some of our sister courts have allowed for the curing of a plea agreement

breach.45Indeed, even the Supreme Court has opined that “some breaches may

be curable upon timely objection—for example, where the prosecution simply

42

Id. (quoting Santobello, 404 U.S. at 261–62).

43

Id. at 141 n.3.

44 United States v. Munoz, 408 F.3d 222, 227–28 (5th Cir. 2005) (holding that the

government’s effort at curing the breach “amounted to little more than lip service to the plea

agreement and did not rectify the breach”); cf. United States v. Carter, No. 02-20175, 2003 WL

147728, at *3 (5th Cir. Jan. 7, 2003) (rejecting the government’s attempt to cure a breach of

the plea agreement). We do not disturb Munoz’s holding that an equivocal or half-hearted

recantation may be inadequate to cure a breach.

45 See, e.g., United States v. Amico, 416 F.3d 163, 165 (2d Cir. 2005) (holding that a

retraction of an argument that violated the plea agreement cured the breach where the

violation “mild, brief, and unassertive” and the retraction was “rapid”); see also Diaz-Jimenez,

622 F.3d at 695–96. But see United States v. Santibanez-Hernandez, 532 F. App’x 339, 340–41

(4th Cir. 2013); Alcala-Sanchez, 666 F.3d at 576–77.

13

 Case: 12-20542 Document: 00512573587 Page: 13 Date Filed: 03/26/2014
No. 12-20542

forgot its commitment and is willing to adhere to the [plea] agreement.”46 Cure

and harmless error stand on different footing from each other. Cure, unlike

harmless error, is the removal of legal defect or correction of legal error; that is,

performance of the contract.47 Simply put, with a cure of breach, the government

abides by the plea agreement, while harmless error excuses a lapse of

government performance. Allowing the government to cure a plea agreement

breach vindicates the “policy interest in establishing the trust between

defendants and prosecutors that is necessary to sustain plea bargaining.”48 Here,

the Government cured its breach by withdrawing its objection and urging the

application of the lesser enhancement, both prior to and at sentencing, and the

district court subsequently acted consistently with the plea agreement. Even

though the revised PSR recommended that § 2B1.1(b)(2)(C) should apply, the

district court specifically applied § 2B1.1(b)(2)(B) in order to cure the breach.

Purser’s argument that the breach also led to the imposition of a 4-level

leadership adjustment pursuant to § 3B1.1(a) fails to persuade. Nothing in the

plea agreement prevented the Government from providing information to the

probation officer or district court about the § 3B1.1(a) adjustment. 

Purser’s second theory of plea agreement breach involves an implicit and

uncured breach. Purser argues that the Governmentimplicitly breached the plea

agreement by urging the application of the 4-level organizer or leader

adjustment under § 3B1.1(a), which was not mentioned in the plea agreement.

46 Puckett, 556 U.S. at 140. The Puckett Court reasoned that applying plain error review

to forfeited errors involving plea agreement breaches would encourage objections atthe district

court level. Id. This would prevent gaming of the system and allow for the creating of a factual

record, facilitating appellate review. Id. It would also allow curable breaches to be cured in the

district court. Id. And if the breach were uncurable, it would allow the district court to “grant

an immediate remedy (e.g., withdrawal of the plea or resentencing before a different judge)

and thus avoid the delay and expense of a full appeal.” Id.

47 See Black’s Law Dictionary 439 (9th ed. 2009).

48 Puckett, 556 U.S. at 141.

14

 Case: 12-20542 Document: 00512573587 Page: 14 Date Filed: 03/26/2014
No. 12-20542

Paragraph 13(f) of the plea agreement only deals with “aspects of U.S.S.G.

§ 2B1.1,” and the plea agreement has nothing to say about the rest of the

Guidelines. Moreover, there was no provision in the plea agreement regarding

the total offense level.49 Therefore, we find no implicit commitment on part of the

Government as to any Guidelines provisions not mentioned in the plea

agreement, such as § 3B1.1(a). The district court was correct in rejecting this

theory of plea agreement breach as well.

Therefore, Purser’s arguments about plea agreement breach fail.

III

We find that Purser is correct that the Government initially breached the

express terms of the plea agreement by objecting to the original PSR on the basis

that § 2B1.1(b)(2)(C) should have applied. However, this breach was sufficiently

cured by the withdrawal and the actions of the district court. In concluding so,

we do not retreat from the principle that the government must honor its plea

agreements. Nor do we step on Puckett’s recognition of the policy interest

necessary for plea bargaining, namely the trust between defendants and

prosecutors—an interest resting on the reality that 97% of federal criminal

convictions are the result of pleas of guilty.50With the adoption of the Sentencing

Guidelines, plea bargaining now lies at the center of the adversarial contest.

Next, we find that the Government did not implicitly breach the plea agreement

by advocating for the § 3B1.1(a) adjustment. As a result, we find that the appeal

waiver is still applicable and bars Purser’s appeal. We DISMISS the appeal.

49 Munoz, 408 F.3d at 225–27 (finding a plea agreement breach because there was an

implicit promise not to argue for an enhancement not in the plea agreement—a plea

agreement that contained a provision as to the total offense level).

50 Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).

15

 Case: 12-20542 Document: 00512573587 Page: 15 Date Filed: 03/26/2014