### REVI SED MARCH 26, 2014

I N THE UNI TED STATES COURT OF APPEALS

FOR THE FI F TH CI RCUI T

No. 12-20542

UNITED STATES OF AMERICA Plaintiff - Appellee

v. CHRISTOPHER PURSER, Defendant - Appellant

A ppeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Chris t o p h e r P u rser pled guilty to a c harge of conspiracy to c ommit wire fraud i n violation o f 1 8 U.S.C. § 1349 and a ppeals his sentence o n s e v e r al grounds. The Government contends that h e is barred from doing so because of

an appeal w a iver c ontained w ithin his plea agreement. We enforce the appeal waiver and dismiss the appeal. I Christopher Purser was indicted for several finance-related crimes and ultimately p led guilty to Count One, which charged hi m w i th c onspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. A s part of h is plea U n i t e d S t a t es C o u r t o f A p p e a l s

F i f t h C ir c u i t 

### F I L E D M arch 25, 2014 Ly le W . Cay ce Clerk Case: 12-20542 Document: 00512573587 Page: 1 Date Filed: 03/26/2014No. 12-20542

agreement, Purser agreed “to waive the right t o appeal the sentence imposed or the manner in which it was determined.” H o w e v e r, h e reserved the right to appeal a sentence above t he statutory maximum or one resulting from either an upward departure or upward variance. In the p lea agreement, he acknowledged that the d istrict court had n ot yet determined his s entence, that his p lea was not induced by any e stimates of his possible sentencing range, a nd t hat t he 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 d o wnward adjustment for acceptance of responsibility; 1 ( 3) req u e s t , if appropriate, an additional 1-level d ownward adjustment; 2 ( 4) not seek an upward departure or variance, and (5) recommend a s e ntence at the “ low end of the Sentencing Guidelines.” Finally, the Government agreed to the following conditions in Paragraph 13(f):

The United St a t e s and the defendant w ill recommend to the Court and t he United States Probation office that the following aspects of U.S.S.G. § 2B1.1 should apply: 1. Base l e v e l offense is 7, as per U.S.S.G. § 2B1.1(a)(1); 2. T h e S p e c i f

i c O f f e n s e C h a r a c t e r i s t i c o f § 2B1.1(b)(1)(J) applies; 3. T h e S p e c i f

i c O f f e n s e C h a r a c t e r i s t i c o f § 2B1.1(b)(2)(B) applies; 4. T h e S p e c i f

i c O f f e n s e C h a r a c t e r i s t i c o f § 2B1.1(b)(8)(C) applies; and 5. T h e S p e c i f

i c O f f e n s e C h a r a c t e r i s t i c o f § 2B1.1(b)(9) applies.

1 See U .S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 3E1. 1( a) (2011)

.
2 Id. § 3E1. 1( b)

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But t he Government specifically reserved, i n t e r a lia , 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 3 7. The offense level was calculat e d u s i n g the base offense level of 7; 3 i ncreased by 18 levels because the loss exceeded $2,500,000; 4 increased by 4 l e v els because there were more than 50, but less than 250, victims; 5 increased b y 2 levels because the offense involved a violation o f a prior judicial or administrative order; 6 increased by 2 levels because the scheme was relocated t o another jurisdiction and partly committed outside the United States; 7 increased b y 2 levels because Purser abused a position of trust; 8 and increased b y 2 levels for obstruction of justice. 9 C ombined w ith Purser’s c riminal history category of III, this yielded a Guidelines range of 262–327 months. The Government initially o bjected that Purser should n o t have received

a 4-level in c r e a s e u n der § 2B1.1(b)(2)(B), but r a ther a 6-level i ncrease under § 2B1.1(b)(2)(C), because the offense i nvolved 2 50 or m ore victims. The Government s ubs e q u ently withdrew this objection, noting t hat as part of the plea agreement it had agreed that § 2B1.1(b)(2)(B) was appropriate, and urged the application of t he lesser enhancement. The Government also objected that Purser should h ave receiv e d a 4-level i n crease pursuant t o § 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: 03/26/2014No. 12-20542

he was an o rganizer or leader of a c r i m i nal activity involving f ive or more participants. Purser objected t hat he should h a v e r e ceived a 2-level decrease under § 3B1.2 due to a minor ro l e i n the conspiracy. He a lso objected to the 2-level increase due to an abuse o f a position o f t r u s t a nd the 2-level i ncrease due to obstruction of justice. The revised PSR responded to these objections. As t o the § 2B1.1(b)(2)(B) and § 2B1.1(b)(2)(C) issue, the probation officer acknowledged t hat the Governme n t withdrew i ts o b jection, but noted t hat t he plea agreement only bound the Government and Purser. As a result, she recommended a 6-level increase anyway because the offense involved 250 or m ore victims—adding 2 levels from the previous 4-level increase. T h e probation o fficer also agreed with the G overnment 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 o f trust adjustment. But t he probation

o f ficer did agree that the 2-level adjustment for obstruction of justice was inap p l i c able—subtracting 2 levels. Finally, she c redited Purser with a 3-level acceptance of respons i bility adjustment—subtracting another 3 levels. Therefore, the total offense level was 38. Purser a gain objected: this time, to t he 6-level incre ase under § 2B1.1(b)(2)(C) a nd 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 G o vernment had br e a c h e d t he plea agreement by recommending a § 2B1.1(b)(2)(C) adjustment, tha t its withdrawal of that recommendation was not sufficient to cure the breac h, and that Purser was entitled to sp e c i fic performance o f the p lea agreement. At the sentencing hearing, Purser also argued t h at the Government had breached an “implicit” commitment not t o seek further adjustments outside of those s pecified

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

in the pl e a agreement b y arguing i n f avor of the § 3B1.1(a) enhancement. Finally, Purser filed a motion for downward variance arguing t h at his prison
exposure was twice that of h is co-defendants, including Steve Mills, his former boss. At the s entencing hearing, the district court rejected t he minor role adjustment under § 3B1.2 tha t P u r s e r s ought. H owever, the court did sustain the o bjection to the a buse of trust adjustment—thus, reducing the offense level by 2 levels. As to the two theories of plea b reach, the district court r ejected both. With regard to the argument t hat the Government breached t he plea agreement by initially see k i n g a 6

- l e v e l § 2 B 1

. 1 ( b ) ( 2 ) ( C ) e n h a n c e m e n t

— a n enhancement the Government admitted it had mistakenly sought a nd n ow urged a g a i n s t at sentencing—the district court decided to err on the side of caution:

T H E COURT: All right. In order to avoid a n y argument that the Governme n t breached the plea agreement by its initial objection to Paragraph 59, I ’m going t o r u le that the enhancement f or number of victims should be plus four. My concern is that the Government’s original objection m ay have motivated closer scrutiny by t h e probation o fficer t o the number of v ictims, although t h e addendum disavows t h a t a nd says that the increase
was b ased solely on the p robation officer’s own r e view of the evidence. I think in order to be absol u tely c a reful, t h e increase for th e n u m ber of victims w ill be plus four instead of plus six. That should eliminate any possible objection that the Gover n m ent has b reached the plea agreement by urging a greater number of victims. Thus, the c ourt 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 s eeking a § 3 B 1

. 1 ( a ) adjustment, the d i strict court stated that “nothing in Paragraph 13(f) deals with an aggravating r o le adjustment.” A ccord i n g l y , the

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court concluded t h at there w as “no credible argument t hat the G overnment breached the plea a greement by requesting an increase f or the Defendant’s role in the offense.” The total o ffense level was now 34. The court sentenced Purser at the bottom o f the a pplicable Guidelines range to 188 m onths of imprisonment. Finally, the c ourt denied the motion f o r d o w n ward 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 wa i v e t h e r ight to appeal the sentence i mposed or the m anner in which it was d e termined.” The plea agreement does allow h im t o appeal “a sentence imposed above t h e s tatutory

m a x i m um, any upward departure, or u pward variance.” However, since t h e present a p peal does not fit within this narrow exception, the first question is whether the appeal waiver b ars Purser’s current appeal. At o ral argument, the Government s eemed to take the p osition t h at it would be willing to for go the assertion of the a ppeal waiver clause, if t his Court could r e ach the merits in its favor. However, in supplemental briefing s ubmitted after the oral argument, it is clear that the Government is still asserting the appeal waiver. Purser argues that th e a p p eal waiver is void because the G overnment breache d t he plea agreement. The Government argues that there was no breach. 1 0 An “alleged breach of a p lea agreement m ay be raised despite a waiver

1 0 T he Governm ent als o res p ond s in tw o other ways
. F irs t, the G overnm ent argues that the p lea agreem ent w as know ing and voluntary. A def end ant m ay w aive his right to ap p eal
as p art of a valid p lea agreem ent i f t h e w a i v er is k now ing and v oluntary. Uni ted Sta tes v
. M cKi nney , 406 F. 3d 744, 746 ( 5th C ir. 2005)

. Thus , to d eterm ine w hether an ap p eal is barred by an ap peal w aiver p rovis io n i n a p l e a agreem ent, w e w ould us ually cons id er whether the
w aiver ( 1) w as k now ing and voluntary and ( 2) ap p lies to the circum s tances at hand , bas ed on the p lain language of the agreem ent. U ni ted Sta tes v
. B ond , 414 F. 3d 542, 544 (5th Cir. 2005)

. D uring Purs er’s p lea hearing, the d is trict court review ed the ap p eal w aiver contained in the p lea agreem ent, and Purs er s tated that he und ers tood the w aiver and agreed to it. H e als o s tated that no one had t hreatened him or f orced him to p lead guilty. Ind eed , in his brief s , Purs er d oes not contend that his p lea w as unk now ing or involuntary. Second , the G overnm ent al s o argues that the ap p eal does not fit w ithin the narrow excep tion of challenging the 6 Case: 12-20542 Document: 00512573587 Page: 6 Date Filed: 03/26/2014No. 12-20542

provision.” 1 1 Thus, we can properly reach t he f irst question of whether the Government breached t he plea agreement during the course o f the proceedings below. Whether the G overnment has b reached a plea agreement is a question of law that this Court reviews de novo. 1 2 A s the Supreme Court h a s m a d e clear, “when a plea rests in any significant degree on a p r o m ise or agreement of the prosecutor, s o that it c an be s aid to be part o f the inducement or consideration, such promise m ust b e fulfilled.” 1 3 In deciding whether t he G overnment violated

a plea agreement, t his Court considers “whether the G o vernment’s conduct was consistent with t he defendant’s reasonable u nderstanding of the agreement.” 1 4 The plea agreement is construed strictly against the Government as drafter of the agreement

. 1 5 T h e d e f e n dant h as the b urden of demonstrating the underlying facts that establish the breach by a preponderance of the evidence. 1 6 Purser argues that the Government breached the plea a greement in two
ways. First, the Gover n m e n t e xplicitly b reached the plea agreement when it

ad equacy of the factual bas is of the conviction. “[ A] v alid w aiver of ap p eal d oes not bar review of a claim that the f

actual bas is for a guilty p lea f ails to es tablis h the es s ential elem ents of the crim e of conviction. ” Uni t ed Sta tes v
. Trejo , 610 F

. 3d 308, 312–13 (5th Cir. 2010)

. But, in his brief s , Purs er d oes not claim that he is attack i n g t h e f a ctual bas is f

or the guilty p lea. Theref ore, the Governm ent’s points are w ell- tak en. But neither goes to the heart of the m atter. Purs er’s argum ent is neither that the p lea was not k now ing or voluntary nor that the f actual bas is is inad equate. Rather he argues that there w as a breach of the p lea agreem ent.

1 1 U ni ted St a t e s v
. Pi z z ol ato , 655 F. 3d 403, 409 ( 5th C ir. 2011) ( internal quotation
m ark s om itted ) ( citation om itted )

. Ind eed , when the G overnm ent breaches a p lea agreem ent, the d ef end ant is “neces s arily releas ed f rom an ap p eal waiver p rovis ion contained therein. ” U ni ted Sta tes v. G onz a l ez , 309 F. 3d 882, 886 ( 5th Cir. 2002)

.

1 2 U ni ted Sta tes v
. M

unoz , 408 F. 3d 222, 226 ( 5th Cir. 2005)

.

1 3 Sa ntobel l o v
. N

ew York , 404 U

. S. 257, 262 ( 1971)

.

1 4 M unoz , 408 F. 3d at 226 ( internal quotation m ark s om itted ) ( citation om itted )

.

1 5 U ni ted Sta tes v
. El a shyi , 554 F. 3d 480, 501 ( 5th Cir. 2008)

.

1 6 U ni ted Sta tes v
. Roberts , 624 F. 3d 241, 246 ( 5th C ir. 2010)

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

objected that § 2B1.1(b)(2)(C) should have applied. S e c o n d, the G overnment implicitly breached t he plea agreement when it argued that the 4-level organizer

or leader a djustment under § 3B1.1(a), which was n ot m entioned in th e p l e a agreement, should have applied. Purser’s fi r s t theory o f plea agreement breach r elies on the fact that the Government initially objected and argued that a 6-level increase under § 2B1.1(b)(2)(C) s hould have applied, rath e r than the 4-level increase under § 2 B1.1(b)(2)(B). Under the plea agreement, the Government had agreed to the 4-level increase. Purser acknowledges that the Go v ernment withdrew its

o b j e c t i o n , b u t n e v e rtheless contends that the i nitial instance of the breach voi d e d the appeal waiver notwithstanding t he withdrawal. The Government responds in several ways. First, t o its eyes, the objection and the withdrawal viewed together do not constitute a brea c h

. S e c o n d, the Government argues that any breach was harmless because the district court specifically stated that it would follow the p lea agreement recommendation of a 4-level i ncrease under § 2B1.1(b)(2)(B), not the 6-level increase r ecommended by the revis e d 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 i nitially o ccurred succeeds. The defendant’s reasona b l e u nderstanding of the agreement was that the G o v ernment would recommend to the district court and the probation office r that § 2 B1.1(b)(2)(B) w o u ld apply and tha t it would n ot deviate f rom that recommendation. B y initially advocating for the higher adjustment found in § 2 B 1

. 1 ( b ) ( 2 ) (C), the Government contradicted the express language found in the plea agreement. As a result, P urser was deprived o f the benefit f or which he bargained: n amely, that t he Government would present a united front that

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

§ 2B1.1(b)(2)(B) a ppl i e d

. 1 7 We do n ot agree with the Government’s contention that the episode viewed in i t s e n t i r e t y does not constitute a b reach. W hen the Government a cts c ontrary to the express t erms o f t h e p l e a agreement, it has b r e ached the plea agreement. 1 8 Similarly, we do n ot find o ur prior pr e c e d e n t distinguishable on the grounds that in t h ose cases the breach t ook place at the sentencing hearing its e l f , 1 9 whereas here the b reach occurred before the hearing. The plea agr e ement’s express l anguage states that the Government would “recommend t o the Court and the United States Probation office” the agree d
upon conditions. Theref o r e , i t is of no moment that the Government b reached the plea agreement b e f

o r e the sentencing hearing, because t he 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 n ature of the objection. Indeed, it w as in order to avoid any arguments about plea agreement b r e ach, that the district court imposed the § 2B1.1(b)(2)(B) en h ancement. Whether harmlessness p lays any role where, as here, the defendant has objected to a breach of the p lea agreement and preserved the issue is a question of some complexity. To begin, in S antobello v
. New Y ork , 2 0 the Supreme Court c l arified that the essential inquiry d oes not focus on the harmlessness of the breach o f a plea

1 7 Cf

. U ni ted Sta tes v
. G ra ndi netti , 564 F. 2d 723, 726 ( 5th Cir. 1977) ( “[ T] he d ef end ant of f ers his p lea not in exchange f or the actual sentence o r i m p a c t on the jud ge, but f or the p ros ecutor’s s tatem ents in court. If thes e s tatem ents are not ad equate ( as op p os ed to s ucces sf ul) , then the agreem ent has not been f ulf illed

. ”)

.

1 8 U ni ted Sta tes v
. Sa l i ng , 205 F. 3d 764, 767 ( 5th Cir. 2000) ( f ind ing a breac h w h e r e “the p ros ecutor’s s tatem ents to the trial jud ge blatantly violated the p lea agreem ent’s exp res s term s ”)

.

1 9 See i d. at 766 ( breach occurred at the s entencing hearing) ; M unoz , 408 F. 3d at 225 ( s am e)

.
2 0 404 U

. S. 257 (1971)

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

agreement. In Santobello , while the original prosecutor had agreed not to make
any sentencing recommendation as part of the plea agreement, 2 1 the new prosecutor recommended the maximum sentence at the s entencing hearing. 2 2 The sentencing judge chose to sentence the defendant to t he maximum sentence,

a n d i n doing so, d eclared that he was not a ffected in any way by t h e n e w prosecutor’s breach of the plea agreement. 2 3 T he Supreme Court acknowledged that it h ad “no reason to d oubt” this a s surance. 2 4 But the Supreme Court refused to reach the question of whether the sentencing judge was influenced by the plea agreement and i ts s ubsequent breach. 2 5 Instead, the Supreme Court vacated the conviction and remanded t he case in order to serve “the interests of justice and [in] appropriate recognition of the d u ties of the prosecu tion in relation to promises made in the negotiation of p leas of guilty.” 2 6 In other w o rds, the

occurrence of the b reach itself was enough to lead t o v a c a t u r o f the judgment, notwithstanding a harmlessness analysis. We have previously read Santobello to foreclose a harmlessness inquiry. In U n ited States v. Valencia , 2 7 we were faced w ith an argument that h armless

error analysis should apply in the case of a preserved objection to a plea
ag r eement breach. 2 8 However, we r ejected the a ttempt to impose a h armless

2 1 Id. at 258.

2 2 Id. at 259.

2 3 Id.

2 4 Id. at 262.

2 5 Id. at 262–63.

2 6 Id. at 262.

2 7 985 F. 2d 758 ( 5th Cir. 1993)

.
2 8 Id. at 761. 10 Case: 12-20542 Document: 00512573587 Page: 10 Date Filed: 03/26/2014No. 12-20542

error inquiry w h e re an objection about plea agreement bre a c h h a s been preserved: The i nterests of j ustice and standards o f good faith in

negotiating plea bargains require reversal where a plea bargain is breached. A lesser s t andard would p ermit the government to make a plea bargain attractive to a defendant, subsequently violate the agreement and t hen argue harmless error, thereby defrauding the defendant. 2 9

We have continued to r eject the i mposition of a harmless e rror inquiry i n our other cases since Valencia

. 3 0 Our decision i n United States v. Hooten 3 1 is not to the contrary. In that c ase, we found that the government had n ot breached the plea agreement. 3 2 A lthough we stated that even if we had found a breach, such

a finding would “not automatically r e quire resentencing,” 3 3 this w a s dicta and not part of the holding of that case. Most of our s ister circuits hav e s imilarly rejected the use of a harmlessness inquiry in situations o f a plea agreement breach where the error has been preserved. 3 4 We do note that many of these c ircuits have also adopted

2 9 Id. ( citation om itted )

.
3 0 See U ni ted Sta tes v
. Keresz tury , 293 F .3d 750, 756 ( 5th Cir. 2002) ( “[ T] he governm ent ap p ears to be p rop os ing s om e k ind of harm les s error excus e.
. . . [We] reject this attem p t by the governm ent to excus e its action as harm les s
. ”) ; Sa l i ng , 205 F. 3d at 766–67 ( “If a breach has in f act occurred , the s entence m us t be vacated without regard to w hether the jud ge w as inf luenced by the governm ent’s actions

. ”)

.
3 1 942 F. 2d 878 ( 5th Cir. 1991)

.
3 2 Id. at 884.

3 3 Id. ( quoting U

ni ted Sta tes v
. Brody , 808 F .2d 944, 948 ( 2d Cir. 1986) )

.
3 4 U ni ted Sta tes v
. Cl a rk , 55 F. 3d 9, 13–14 ( 1s t C ir. 1995) ; U ni ted Sta tes v
. V

a v a l , 404 F. 3d 144, 154–55 ( 2d Cir. 2005) ; Uni ted Sta t es v
. Ma rti n , 788 F .2d 18 4, 187 ( 3d Cir. 1986) ; U ni ted Sta tes v. Ki ng , Nos

. 91- 5338, 91- 5339, 1992 WL 75161, at *2 ( 4th Cir. Ap r. 16, 1992) ( p er curiam ) ; U

ni ted Sta tes v
. A skew , No. 97- 6278, 1999 WL 236187, at *2 ( 6th Cir. Ap r. 14, 1 9 99) ( per curiam ) ; U ni ted Sta t es v
. Di a z -Ji m enez , 622 F. 3d 692, 694–97 ( 7th C i r
. 2 0 1 0 ) ; U ni ted Sta tes v
. A lca l a - Sa nchez , 666 F. 3d 571, 577 ( 9th Cir. 2012) ; Uni ted Sta tes v
. Va nD a m , 11 Case: 12-20542 Document: 00512573587 Page: 11 Date Filed: 03/26/2014No. 12-20542

a mitigating doctrine that stands in s ome contrast to the no-harml e ssness doctrine. Under this mitigating doctrine, there is n o harmlessness inquiry only in cases where there is a m aterial breach of the p l e a agreement. 3 5 In other words, minor b reaches do not count. We similarly o nce held t hat a breach of a plea agreement was immaterial. 3 6 However, since the breach in this c ase cannot be characterized as immaterial, this mitigating doctrine does not apply. Finally, most recently in Puckett v. U nited States , 37 t he S upreme Court

w a s f a ced with a b reach of a plea agreement to which the defendant had not objected at the district court. 3 8 The Supreme Court h eld that this was a case of

a forfeited error, 39 a n d as a result, held t hat plain error review was the appropriate standard. 4 0 Obviously, that is n ot the case here where Purser clearly object e d t o t h e b reach of the plea agreement and preserved the error. But Puckett ’s assessment of Santo b e l l o is i n s t ructive. According to Puckett ,

“ Santobello did hold that automatic reversal is warranted when objection to the Government’s breach of a p l e a agreement has been preserved.” 4 1 But the Supreme Court clarified that this r ule was not due t o the fact that a pl e a agreement breach is a structural error—which are not susceptible or amenable

493 F

. 3d 1194, 1202 ( 10th Cir. 2007) ; U ni ted Sta t es v
. H

al l ock , 530 F. Ap p’x 875, 882 ( 11th Cir. 2013) ( per curiam ). But see U ni ted Sta tes v
. E. V

. , 500 F. 3d 747, 754–55 & 755 n. 13 ( 8th Cir. 2007) ( ad op ting a harm les s nes s inquiry)

.

3 5 Cl a rk , 55 F. 3d at 13 n. 3; V a v a l , 404 F. 3d at 155; D i a z - Ji menez , 622 F. 3d at 694–97; V a nD a m , 493 F. 3d at 1202 & n. 5.

3 6 U ni ted Sta tes v
. M

a cInni s , N o. 94- 20627, 1995 W L 3 7 1 1 3 7 , at *5 ( 5th Cir. June 7, 1995) ( per curiam ).

3 7 556 U

. S. 129 (2009)

.
3 8 Id. at 131.

3 9 Id. at 138.

4 0 Id. at 143.

4 1 Id. at 141. 12 Case: 12-20542 Document: 00512573587 Page: 12 Date Filed: 03/26/2014No. 12-20542

to harmless error analysis—but rather bec a u s e of a “policy interest in establishing the t rust b etween d efendants and prosecutors that is n ecessary to

s u s tain plea bargaining—an ‘ essential’ and ‘highly desirable’ part of th e c r i m i n a l process.” 4 2 In a footnote, the majority opinion explicitly refused to confront the question of whether Santobello ’s “automatic-reversal rule has s u rvived [the Supreme Court’s] recent elaboration of harmless-error principles.” 4 3 Therefore, Puckett reads Santobello as, at l e a s t currently, foreclosing any harmless error

an a l y s i s of a plea agreement breach. Therefore, we c a nnot agree that harmlessnes s p l a y s a n y role in the inquiry where as here there has been a breach o f the plea a g r e e ment and the objection to that breach was p roperly preserved. We agree with t h e Government’s contention t hat th e breach of t he plea agreement was adequately c ured in this case. While we have previously rejected
argu ments that the government successfully cured a plea agreement breach, 4 4

some o f o u r sister courts have allowed for the curing o f a plea agreement breach. 4 5 Indeed, even the Supreme Court has opined that “ some breaches m ay be curable upon t i mely o bjection—for exampl e , w h e r e the prosecution simply

4 2 Id. ( quoting Sa ntobel l o , 404 U. S. at 261–62)

.

4 3 Id. at 141 n. 3.

4 4 U ni ted Sta tes v. M

unoz , 408 F. 3d 222, 227–28 ( 5th Cir. 2005) ( hold ing that the governm ent’s ef

f ort at curing the breach “am ounted to little more than lip s ervice to the p lea agreem ent and d id not rectif y the breach”) ; cf

. U ni t ed Sta tes v
. Ca rter , No. 02- 20175, 2003 WL 147728, at *3 ( 5th Cir. Jan. 7, 2003) ( rejecting the governm ent’s attem p t to cure a breach of the plea agreem ent)

. We d o not d is tu r b M u n o z ’s hold ing that an equivocal or half

- hearted recantation m ay be inad equate to cure a breach.

4 5 See, e. g. , U

ni ted S ta tes v
. A m i co , 416 F. 3d 163, 165 ( 2d C i r. 2005) ( hold ing that a retraction of an argum ent that violated the p lea agreem ent cured the brea c h w h e r e the violation “m ild , brief , and unas s ertive” and the retraction was “rap id ”) ; see al so D i a z -Ji m enez , 622 F. 3d at 695–96. But see U ni ted Sta tes v
. Sa nti ba nez - H erna ndez , 532 F

. Ap p’x 339, 340–41 ( 4th Cir. 2013) ; A l ca la

- Sa nchez , 666 F. 3d at 576–77. 13 Case: 12-20542 Document: 00512573587 Page: 13 Date Filed: 03/26/2014No. 12-20542

forgot i ts commitment and i s willing t o adhere to the [plea] agreement.” 4 6 Cure and h a rmless error stand o n different footing f rom e ach other. Cure, unlike harmless error, i s the removal of legal defect or correction of legal error; that is, performance of the contract. 4 7 Simply put, with a cure of breach, the government abi d e s b y the plea a greement, while harmless error excuses a lapse of government performance. Allowing t he gov ernment to cure a plea agreement breach v indicates the “policy interest in e stablishing the trust between defe n d a n t s a n d p r o s e c utors that is necessary to sustain plea bargaining.” 4 8 Here, the G over n m e n t cured its b reach by withdrawing i t s objection and urging the application of the l esser enhancement, both prior to and at sentencing, and the district court subsequently acted consistently with the plea agreement. Even though the revised P SR recommende d t h a t § 2B1.1(b)(2)(C) should apply, the d i s trict court specifically applied § 2B1.1(b)(2)(B) in order to cure the breach. Purser’s argument that t he b r e a c h also led to the imposition of a 4-level leadership adjustment pursuant to § 3B1.1(a) fails to persuade. Nothing in the plea a greement prevented the Government from pro viding information to the probation officer or district court about the § 3B1.1(a) adjustment. Purser’s second theory of plea agreement b reach i nvolves an i mplicit and uncured breach. Purser argues that the Gov e r n m e n t i m p l i c i t l y b r e a c h ed the plea
agreeme n t by urging t he application of t he 4 -level o rganizer or leader adjustment under § 3B1.1(a), which was not mentioned in the plea agreement.

4 6 P uckett , 556 U

. S. at 140. The Puckett Court reas oned that ap p lying plain error review to f orf eited errors involving p lea agreem ent breaches w ould en c o u r a g e o b j e c t i o n s a t the d is trict court level. Id. This w ould p revent gam ing of the s ys tem and allow for the creating of a f actual record , f acilitating ap pellate review

. Id. It w ould als o allow curable breaches to be cured in the d is trict court. Id. And if the breach w ere uncurable, it w ould allow the d is trict court to “grant
an im m ed iate rem ed y ( e. g. , withd raw al of the p lea or res entencing bef ore a dif f erent jud ge) and thus avoid the delay and exp ens e of a full ap p eal. ” Id.

4 7 See Black ’s Law D ictionary 439 ( 9th ed

. 2009)

.

4 8 Puckett , 556 U

. S. at 141. 14 Case: 12-20542 Document: 00512573587 Page: 14 Date Filed: 03/26/2014No. 12-20542

Paragraph 13(f) of the plea agreement only deals wi t h “ aspects of U.S.S.G. § 2B1.1,” and t he plea agreement has not h i n g to say a bout the rest of the Guidelines. Moreover, there was no provision in the plea agreement regarding the total offense level. 4 9 Therefore, we find no implicit commitment on part of the Government as to any Guidelines p r o v i s ions 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 f ind that P urser is correct that the Government i nitially breached the
express terms of t he plea agreement by objecting to the o riginal PSR on the basis that § 2B1.1(b)(2)(C) should have applied. However, t his breach was sufficiently cured by the withdrawal and the actions of the district court. In concluding so,

we do not retreat from the p r i n c i p l e that the government must honor its plea agreements. Nor d o we s tep on Puckett ’s recognition of the policy interest
necessary for plea bargaining, namely t h e trust between defendants and prosecutors—an interest r esting on the reality that 97% of f e d e r a l c riminal convictions are the result of pleas of guilty. 5 0 With the adoption of the Sentencing Guidelines, plea bargaining now lies at the center o f the adversarial contest. Next, we find that the Government did not implicitly breach the plea agreement by a dvocating for the § 3B1.1(a) adjustment. As a result, we f ind that the appeal waiver is still applicable and bars Purser’s appeal. We DISMISS the appeal.

4 9 M unoz , 408 F. 3d at 225–27 ( f ind ing a p lea agreem ent breach becaus e there w as an im p licit p rom is e not to argue f or an enhancem ent not i n t h e p lea agreem ent— a p lea agreem ent that contained a provis ion as to the total of f ens e level)

.
5 0 M i ssouri v
. Frye , 132 S. Ct. 1399, 1407 ( 2012)

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