PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23

- 1192

_______________

UNITED STATES OF AMERICA

v.

DANNY CRUZ

, Appellant

_______________

On A ppeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1:20

- cr

- 00161

- 001 )

District Judge: Honorable Christopher C. Conner

_______________

Argued: November 6

, 2023

Before: RESTREPO

, BIBAS

, and SCIRICA

, Circuit Judges

(Filed: March 8, 2024 )

Craig E. Kauzlarich [ARGUED]

A BOM & K UTULAKIS

2 W est High St reet

Carlisle, PA 17013

Counsel for A ppell ant2 Christian T. Haugsby [ARGUED]

U

. S

. A TTORNEY ’ S O FFICE

1501 N orth 6th Street, 2nd F loor

Harrisburg, PA 17102

Counsel for Appellee

___ ____________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge

.

Prosecutors must keep their promises. And if they do not

, they must make things right quickly, clearly, and fully. The

prosecution here did not do that. Though it promised to support

a total offense level of 14 at sentencing

, it later endorsed an

extra enhancement. After the defendant objected

, the prosecution changed course and took no position on the enhancement.

But that was not enough. The prosecution neither retracted its

erroneous position unequivocally nor fulfilled its promise to

the defendant. So we will vacate the sentence and remand to

let a different judge consider the right remedy.

I. C RUZ P LEADED G UILTY TO A

C ELLPHONE C ONSPIRACY

Danny Cruz wanted to make money behind bars. So he

hatched a plan to smuggle cell phones into prison and sell them

to his fellow inmates. To get the phones in, he bribed a prison

guard. Unfortunatel y for him, the government caught on to his

scheme.3 Cruz was charged with conspiring to violate the Travel Act

(by bribing a prison guard) under 18 U.S.C. § 371. Facing up

to five more years in prison, he took a plea deal. He pleaded

guilty in exchange for the prosecution’s “agree[ment] to recommend

... that the total offense level is 14, which is based on

a [base offense] level 12 per U.S.S.G. § 2C1.1(a)(2) (bribery of

a public official) and a two

- level increase per U.S.S.G.

§ 2C1.1(b)(1) (more than one bribe). ” App. 29. Yet “[e]ach

party reserve[d] the right to make whatever remaining arguments it deem[ed] appropriate” about how to “appl[y]

... the

... Sentencing

... Guidelines to [Cruz’s] conduct.” App. 29

–

30. And if the court asked for briefing, argument, or evidence

on how to apply the Guidelines, the prosecution was free to

respond.

Though the parties agreed on these calculations, the Probation Office did not

. It called for a four

- level enhancement

because the crime involved “a [] public official in a ... sensitive position.” U.S.S.G. § 2C1.1(b)(3). That enhancement

would make the adjusted offense level 18 :

• Base offense level for bribery (agreed

- upon) 12

• Pl us enhancement for multiple bribes

(agreed

- upon) +2

• Plus enhancement for bribing public official

in sensitive job (disputed) +4

Adjusted offense level 18

• Minus acceptance

- of

- responsibility discount

(undisputed) -3

Final offense level 154 Cruz objected that the sensitive

- public

- official enhancement

did not apply and did not reflect the plea agreement. So

, he

said, “if the Government endorses the enhancement [

, ] that

... would contravene the Plea Agreement.” App. 74. T he prosecution then allegedly breached the agreement three times.

First a lleged breach : To discuss Cruz’s objections, the District Court held a presentence conference by phone in July

2022. Though there is no transcript, both parties agree on what

happened during that call : the prosecution supported the extra

four

- level enhancement. Cruz objected that th is support

breach ed the plea agreement.

To sort out the confusion, the court asked the parties to brief

whether the disputed enhancement applied and whether the

prosecution had breached the agreement. In his brief, Cruz

sought to withdraw his guilty plea. He argued that the prosecution had breached the deal both by not opposing the four

- level

enhancement and by supporting a total offense level of 18.

Second a lleged breach : Responding to Cruz’s brief, the

prosecution changed course. Its September 2022 brief took no

position on whether the four

- level enhancement applied. Instead,

it summarized the law on the issue neutrally. Thus, the court

found no breach and denied Cruz’s motion to withdraw his

plea. In January 2023, a t the start of the sentencing hearing

, the

prosecution reiterated that it was t aking no position on the

enhancement

.

Third a lleged breach : At sentencing, the District Court

found that the four

- level enhancement did appl y. So did a

three

- level reduction for acceptance of responsibility. That

made Cruz’s final offense level 15 and his final Guidelines5 range 41 to 51 months

. T he prosecution then said that range

was “fair and appropriate

. ” App. 116

, 118

. T he court sentenced

him to 51 months in prison, the top of the range.

On appeal, Cruz alleges all three breaches of the plea agreement

. But we need not reach the second and third ones b ecause

his first theory correctly identifies an uncured breach

. The parties agree on the facts and dispute only whether the prosecution ’s actions amounted to a breach. That is a pure issue of law,

so we review de novo. United States v. Moscahlaidis

, 868 F.2d

1357, 1360 (3d Cir. 1989).

II. T HE P ROSECUTION B R OKE T HE P LEA D EAL

A. The appeal waiver does not bar our review

Plea bargains are contracts between prosecutors and defendants. Id. at 1361. Each side agrees to certain charges or

sentence calculations and gives up its right to take other positions. Ye t the se are not ordinary contracts. The stakes are not

goods or money , but liberty and justice. So public policy limits

what lawyers, as officers of the court, can say and do in court.

Because defendants give up many constitutional rights by

entering plea bargains , “courts must carefully scrutinize [them]

to insure that the government has fulfilled its promises.”

United States v. Williams , 510 F.3d 416, 422 (3d Cir. 2007).

And lawyers do not find the defendant guilty or sentence him ;

the court does that, after hearing the lawyers out

. T o do that

fairly, judges need to understand the facts and the law. In a plea

bargain, lawyers may agree to take certain plausible positions

in litigation. But no matter what the plea agreement says, t he y6 may not lie to or mislead the court. See Wharton v. Superintendent, Graterford SCI , No. 22

- 2839 (3d Cir. Mar

. 8 , 2024).

Nor may they breach the agreement. See Santobello v. New

York , 404 U.S. 257, 262 (1971)

. I f they do, they may not insulate their own breach es from judicial review. True, the parties

here waived their right to appeal. Those appeal waivers are

generally valid

— but not always

. United States v. Khattak , 273

F.3d 557, 562 (3d Cir. 2001)

. For instance, they do not bar us

from reviewing whether Congress authorized a particular sentence. United States v. Yung , 37 F.4th 70, 82 ( 3d Cir. 2022).

And they do not stop us from policing the prosecution ’s

breaches of its own obligations under a plea agreement. United

States v. Schwartz , 511 F.3d 403, 405 (3d Cir. 2008). Judges

must independently verify that the parties have followed the

law and their agreements. So we may proceed to consider

Cruz’s claim.

B. The prosecution was not free to seek the sensitive

public

- official enhancement

The parties dispute what the plea agreement means by

“tota l offense level.” App. 29. Cruz reads it “ to mean the final,

aggregate offense level.” Appellant’s Br. 14. The government

disagrees, saying that it could not be the final calculation

because it leaves out the three

- level reduction for acceptance

of respons ibility.

The government is wrong for three reasons. First, the government admits that it drafted the plea agreement and that the

phrase “total offense level” was “inartful.” Appellee’s Br. 20

n.4. So we read the agreement contra proferentem : “[T]o the

extent there is ambiguity caused by the ‘little bit of poor7 draftsmanship’ conceded by the prosecutor, we must construe

the agreement against the government as drafter.” United

States v. Rivera , 357 F.3d 290, 295 (3d Cir. 2004), abrogated

on othe r grounds by Puckett v. United States , 556 U.S. 129,

134 (2009); accord United States v. Floyd , 428 F.3d 513, 516

(3d Cir. 2005) . Second, the plain meaning of “total offense

level” is that it reflects the “total,” which includes all enhancements. Third , we “must read [Cruz’s] plea bargain in a manner

that gives meaning to each provision.” Floyd , 428 F.3d at 516

.Yet the government’s reading would make that term meaningless.

The government also notes that the plea agreement left it

free to make “ whatever rem aining arguments it deems appropriate” about the Guidelines. App. 30. Thus , it argues , the

plea deal let it seek the four

- level enhancement identified by

the Probation Office

. But “remaining arguments” are only

those left after specific ones run out. The specific stipulation

(recommending a total offense level of 14) trumps the general

permission. Rivera , 357 F.3d at 295. So that provision of the

deal does not get the prosecutio n out of its duty to stick to a

total offense level of 14 or less.

In short, the plea agreement barred the prosecution from

advocating a total offense level above 14

. It remained free to

respond to the court’s inquiries neutrally and accurately . But it

cou ld not support the four

- level enhancement for bribing a

public official in a sensitive job.8 C. B y supporting the enhancement , the prosecution

br oke the plea deal

At the July 2022 presentence conference, the prosecution

supported the four

- level enhancement for bribing a public

official in a sensitive job. The government admits that. It thus

supported a total offense level of 18, or 15 with the acceptance

of

- responsibility reduction. Either way, it had promised to

recommend a total offense level n o higher than 14. So it

breached the agreement.

The government argues that there was no breach under

United States v. Larkin , 629 F.3d 177 (3d Cir. 2010)

. But t here,

“ the government [did] not cross the line between providing an

analysis, which [was] expressly permitted by [the agreement],

and impermissibly advocating for application of the enhancement.” Id. at 191. Here, b y contrast, the prosecution crossed

that line by endorsing the enhancement. Larkin is inapt

.

III. T HE P ROSECUTION D ID N OT C URE I TS B REACH

Shortly after its breach, the prosecution backtracked, taking

no position on the four

- level enhancement. This attempted cure

raises two questions: (1) Can the prosecution cure breaches of

plea agreements? (2) If so, d id the prosecution cure its breach?

We hold that the prosecution can cure some breaches of

plea agreements. And we adopt a two

- step framework for evaluating cures. First

, we gauge whether cure is needed or even

possible. Second

, we decide whether the attempted cure sufficed to remedy any harm from the breach

. To suffice, at a minimum, the prosecution must promptly and unequivocally retract

its erroneous position and give the defendant the benefit of his9 bargain. But here, at the second step, the prosecution’s cure fell

short.

A. Step one: t his breach was neither too big n or

too small

“ [S]ome breaches may be curable upon timely objection

... .” Puckett

, 556 U.S. at 140 ; see also U.C.C. § 2

- 508 (letting seller s cure improper tender s or deliver ies )

. But not every

breach requires cure. Some are extremely minor

, causing no

meaningful harm. United States v. Vaval

, 404 F.3d 144, 155

(2d Cir. 2005). A nd a “slip of the tongue or typographical

error” may not even be a breach

. See United States v. Alcala

Sanchez

, 666 F.3d 571, 576 (9th Cir. 2012).

Other breaches are too profound to cure. For instance, if a

prosecutor agrees to support a lower sentence but then

“strong[ly] commit[s] to a sentence at the high end of the

guidelines,” the cat may be out of the bag. United States v.

Diaz

- Jimenez

, 622 F.3 d 692, 696 (7th Cir. 20 1 0)

. At that point,

the trial court can avoid a full appeal and reversal only with an

immediate remedy, like letting the defendant withdraw the

plea or be resentenced before a different judge. Puckett

, 556

U.S. at 140.

But we suspect that most breaches fall between these two

extremes and call for some cure. That includes this breach.

Supporting a higher offense level was much more than a technical error. Yet the prosecution did not strongly commit to

applying the enhancement. Diaz

-Jimenez

, 622 F.3d at 696.

And the prosecution soon changed course

, explain ing its “confusion surrounding the terms of the plea agreement.” App. 92.

So it could have cured it s breach

.10 B. Step two: the cure was prompt but not unequivocal

or sufficient

If a breach can and must be cured, we ask next if the prosecution did cure it. At a minimum, the prosecution must retract

its erroneous position promptly and unequivocally

. See United

States v. Ligon

, 937 F.3d 714, 720 (6th Cir. 2019); Diaz

Jimenez

, 622 F.3d at 696; United States v. Amico

, 416 F.3d

163, 165 (2d Cir. 2005 )

. And for courts to even consider a cure

,

a defendant must get the benefit of his bargain

. See Alcala

Sanchez

, 666 F.3d at 576; see also Vaval

, 404 F.3d at 155.

Meeting these requirements is necessary to cure a breach but

may not be sufficient.

Though the breach was curable, the prosecution did not

cure it

. Its September 2022 brief was prompt enough

. But the

prosecution did not retract its erroneous position unequivocally

. Rather than endorsing a total offense level of 14 or retracting its

earlier statement, it stayed neutral

. And after the court applied

the enhancement, the prosecution said the resulting range was

“fair and appropriate.” App. 116, 118. Thus, f ar from counterbalanc ing its breach

, the prosecution may have compounded it

.

Nor did Cruz get the benefit of his bargain. He bargained

for both sides to “present a united front” to the court about the

total offense level. Alcala

- Sanchez

, 666 F.3d at 57 6 ; see also

United States v. Purser

, 747 F.3d 284, 290 (5th Cir. 2014)

(Higginbotham, J.)

. Yet the prosecution did not back him up.

This analysis may differ from harmless

- error review. One

court has distinguished the two, explaining that “w ith a cure of

breach, the government abides by the plea agreement, while

harmless error excuses a lapse of government performance.”11 Purser

, 747 F.3d at 294. So

, the court reasoned, the question is

not whether the breach was “excuse[d]” but whether the legal

error was “remov[ed]” or “correct[ed]

. ” Id.

Plus, it is an open question whether we may excuse these

errors as harmless when, as here, the defendant objected

promptly

. See Puckett

, 556 U.S. at 141 n.3. True, we have held

that, at least when a habeas petitioner failed to object in the trial

court

, this type of error is neither structural nor defies harmless

error review

. See Lacombe v. Warden James T. Vaughn Corr.

Ctr.

, No. 21

- 1886 (3d Cir. Mar

. 8

, 2024). Yet we leave that

question open because

, under any test, the government has not

shown that it s breach was harmless

. The court applied the disputed enhancement, though it could have chosen not to. And

the prosecution did not correct its legal error. So un der any

standard, the prosecution loses.

Cruz immediately objected to the prosecution’s breach.

T hough the prosecution changed course, it never retracted its

erroneous position unequivocally

. And Cruz never got the benefit of his bargain. So the prosecution did not cure its July 2022

breach

.

IV. O N R EMAND

, A N EW J UDGE

M UST C HOOSE T HE R EMEDY

Because the prosecution did not cure its breach, we will

“remand the case to the district court for a determination

whether to grant specific performance or allow withdrawal of

the plea.” United States v. Nola n

- Cooper

, 155 F.3d 221, 241

(3d Cir. 1998). We have no reason to question the experienced

judge ’s impartiality. But Cruz might understandably fear that

the prosecution ’s breach will still ring in the judge’s ears. So12 “ t o avoid even the appearance of such harm, when we do

remand for breach of a government obligation [to engage or]

not to engage in sentence advocacy, we direct the case to a different judge.” Vaval

, 404 F.3d at 155.

* * * * *

If p rosecutors break the ir agreements

, they must make

amends. Because the prosecution did not do that here, we will

vacate Cruz’s sentence and remand

.