1 The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri, sitting by designation.

2 In United States v. Leach , this court vacated Leach's 72-month sentence, holding that the district court failed to apply U.S.S.G. § 4B1.5 to his offense of conviction. 491 F.3d 858, 868 (8 th Cir. 2007). On remand, Leach faced an advisory 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2086

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Tyler M. Leach, *
* Appellant. *

___________ Submitted: January 14, 2009 Filed: April 13, 2009

___________ Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge. 1

___________ SMITH, Circuit Judge. Tyler M. Leach, after entering into a written plea agreement with the government, pleaded guilty to knowingly using a facility of interstate commerce to attempt to entice a minor into engaging in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b). During resentencing, 2the district court 3 sentenced Leach to 120Guidelines range of 168 to 210 months' imprisonment.

3 The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.
-2- months' imprisonment. Leach appeals, arguing that the government breached a "possible oral agreement" to recommend the low end of the Guidelines range at sentencing. According to Leach, the governme nt's request for a sentence at the high end of the Guidelines range breached its negotiated duty under the plea agreement. Thus, he contends that he should be relieved from his reciprocal duty not to seek a sentence below the Guidelines range and have the opportunity on remand to ask for a sentence below ten years' imprisonment. We affirm.

I. Background The government charged Leach in a three-count indictment with knowingly using a facility of interstate commerce to attempt to entice a minor into engaging in illegal sexual conduct, in viol ation of 18 U.S.C. § 2422(b) ("Count One"); traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, in violation of 18 U.S.C . § 2423(b) ("Count Two"); and criminal forfeiture, pursuant to 18 U.S.C. § 2253 ("Count Three"). Leach entered into a plea agreement, pleading guilty to Count One in return for the government dropping Count Two and Count Three. In the plea agreemen t, Leach acknowledged that he was subject to a five-year minimum sentence and a 60-year maximum sentence under 18 U.S.C. § 2426(a) because his "offense occurred af ter [Leach] had a prior sex offense conviction."

Relevant to the present appeal, ¶ 10(h) of the plea agreement provided that

the United States agrees not to seek an upward departure from the Guidelines or a sentence outside the Guidelines range, and defendant agrees to not seek a downward de parture from the Guidelines or a sentence outside the Guidelines ra nge. The agreement by the parties to-3- not seek a departure from the Guid elines is not binding upon the Court or the United States Probation Office and the Court may impose any sentence authorized by law, including any sentence outside the applicable Guidelines range thatis not "unreasonable" . . . .

Additionally, ¶ 11 of the plea agreemen t specified that both Leach and the government acknowledged and agreed "that there are no agreements between the parties with respect to any Sentencing Guid elines issues other than those specifically listed in Paragraph 10, and its subsections. As to any other Guidelines issues, the parties are free to advocate their respec tive positions at the sentencing hearing."

In ¶ 15 of the plea agreement, Leach wa ived his appellate and post-conviction rights. In ¶ 19, Leach affirmed that "no th reats or promises, other than the promises contained in this plea agreement, have been made by the United States, the Court, his attorneys or any other party to induce him to enter his plea of guilty." Finally, ¶ 20 provided:

No Undisclosed Terms . The United States and defendant acknowledge and agree that the above-stated term s and conditions constitute the entire plea agreement between the parties, and that any other terms and conditions not expressly set forth in this agreement do not constitute any part of the parties' agreement and will not be enforceable against either party.
At the change-of-plea hearing, Leach r eaffirmed that there were no promises "other than the Plea Agreemen t itself" that caused him to plead guilty. At his original sentencing, the district court asked the government whether it was seeking a sentence in excess of 63 months—the top of what the district court believed was Leach's Guidelines range. In response, the government stated, "I believe [the government's] oral agreement with Mr. Moss [Leach's attorney] if not in writing somewhere along the line was to offer the botto m of the guideline range . . . after the final calculation." The government argued that the correct Gu idelines range was 168 to 210 months'4 Although the word "neither" does not appear in the transcript, the context of the sentence indicates that it was inadvert ently omitted from the transcription of the government's remarks.
-4- imprisonment pursuant to U.S.S .G. § 4B1.5(a), but the district court refused to apply the enhancement, finding that 60 to 63 months' imprisonment was the applicable Guidelines range. The government objected to the district court's ruling that the enhancement did not apply. The governmentthen made three separate sentencing recommendations based on the three Guide lines ranges that might potentially have applied to Leach, each time recommending a se ntence at the low end of the Guidelines range. In conjunction with these recommendations, the government stated:

Because the Court has ruled against the Government on both of these enhancements, we are left with, as already noted, the range of 60 to 63 months. And while there has been so me discussion on the record and just with Mr. Moss on whether the Govern ment orally agreed to recommend the bottom of the guideline range, essentially [neither] 4Mr. Moss [n]or the Government can remember if ther e was an oral agreement to that.

The district court sentenced Leachto 72 months' imprisonment. The government appealed, contending that the district court erred in not applying § 4B1.5(a) or, in the alternative, § 4B1.5(b). Leach , 491 F.3d at 859. After holding that § 4B1.5(a) applied to Leach, this court vacated Leach's sentence and remanded for resentencing. Id . at 868.

At resentencing, the following exchangeoccurred between the court and the government:

THE COURT: The Government's co mmitment under the Guidelines I think is not to ask for more than the minimum, and so I take it that the Government, you said this before, you are asking for the new minimum under the Sentencing Guidelines, 168 months; is that correct?-5- MS. CORDES [for the government]: I am sorry, Judge. I misunderstood. Are you saying the Government can'task for the upper end of the Guideline range? THE COURT: I thought, and may be mistaken. No, I think you are probably right. I suppose I have forgotten exactly the terms in the Plea Agreement. You are committed to not ask for—well, I thought there was something in the Plea Agreement that said you would recommend the minimum under the Guidelines.

Leach's attorney then interj ected that, as he remember ed the original sentencing hearing, the government "felt compelled to ask for the low end of the Sentencing Guidelines," even though that was "not written in the Plea Agreement." Leach's attorney then explained:

I don't know, and I can tell the Court, I don't personally recall any oral agreement between us, but I believe th at at the initial sentencing hearing Ms. Cordes [for the government] has referred to a Government agreement not to oppose sentencing at the low end of the range.

I don't believe that is in the written Plea Agreement. I think that is what was asked for in the original sent encing, which would be 60 months. I can't really say that I have any doc umentation other than my recollection of what was discussed at the sentencing hearing.

The court acknowledged that its recollec tion, which was consistent with what Leach's attorney remembered , might have been based on what was stated at the sentencing hearing, rather than the text of the plea agreement. The government's attorney then asked for a rece ss to refresh her memory by re viewing a transcript of the initial sentencing hearing. The recess reque st emphasized that the government did not want to take a position at sentencing that conflicted with either the written plea agreement or any oral representations thatthe government might have made to Leach's attorney.-6- After the recess, the government's atto rney stressed the seriousness of the offense and emphasized that Leach was likely to reoffend. She emphasized that nothing in the record indicated that the partie s had, in fact, reachedany oral agreement with respect to a government sentencing recommendation; instead, she asserted that the record showed that both the government and Leach's attorney were "unaware of exactly what oral agreem ent" there might have been regarding a sentencing recommendation and that the parties had onl y discussed "the mere possibility of an oral agreement." The government 's attorney then stated:

If there was an oral agreement, th ere is nothing in the Plea Agreement that restricts the Government asking for the top of the Guidelines range, and if there was an oral agreem ent of any sort, Mr. Moss [Leach's attorney] and I can't recall at this time. I certainly don't ever mean to violate an oral agreement that I have made with a defense attorney. With that be ing in mind this is a case where the Government would like the top of the Guideline.

Leach's attorney then objected to the government's recommendation, arguing that it constituted a breach of a possible oral agreement:

The Government is correct. Judge, I don't recall the details of our oral agreement regarding the low end of th e range. The transcript very clearly at the prior hearing states that wethink there may have been an oral agreement. That is why the Government asked for the low end at each and every point, at the enhancement level, at the four level, the other level, and then at this level, of 60 to 63 months. I don't remember the details either, but two years ago the Government was unde r the impression that, hey, there may be an agreement, we couldn't figure it out, and they abided by that agreement.-7- I consider this a breach of the agreement. I do consider it a breach, I object, and if we are going to say that we think we had an oral agreement two years ago, but now we don't re member the details, why is that not—we honored it back then. Why are we not honoring it now? So, I would consider it a breach.
I don't know the details of it now, and I can't say what the details were. But the transcript is what it is, Judge, and so we do object on that basis.

In response, the government's attorney stated:

First of all, with regard to the agr eement at the prior sentencing that Mr. Moss is referencing, I have the transc ript right here and it flat-out says that Mr. Moss nor the Government can remember if there was an oral agreement. So, I gave Mr. Moss the benefit of th e doubt at that hearing and the idea there may have been an oral agreem ent. There is no evidence to support that. The record very cl early reflects that. No onecan remember if there was or not. There is no basis for an objection eith er because it certainly is not clear in the Plea Agreement for us to ask for the bottom of the Guideline. So there is no breach of the Plea Agreement. The district court, without ruling or even commenting on Leach's objection, sentenced Leach to 120 months' imprisonm ent. The government objected to the sentence as being unreasonably low, and Leach's attorney responded that he "ha[d] no objection, other than the breach issue, which ha[d] already been noted."

II. Discussion On appeal, Leach argues that the governme nt's breach of the oral agreement to recommend the bottom of the Guidelines range should permit hi m to argue for a sentence below the low end of the Guidelines range; thus, he asks this court to remand-8- the matter to the district court to allow him to advocate for a sentence unrestricted by the provision of the plea agreement that requi red him to ask for a sentence within the Guidelines range. According to Leach, in 2006, the government recommended the most lenient Guidelines sentence based on a "potential oral agreement" with Leach. More than two years later, the government recommended the most severe Guidelines sentence, despite the prior recommendation. Leach maintains that "[a]lthough the parties did not recall its unde rlying details, the government['s] conduct at the original sentencing established that such recomme ndation constituted part of its negotiated duty under the plea agreement with [him]." Leach asserts that a breach of a plea agreement constitutes a due process violation and that, while the district court ultimately imposed a sentence below the Gu idelines range, the government's advocacy for a more severe sentence could have aff ected the extent of the court's downward variance.

In response, the government argues that Leach is not entitled to resentencing on the mere possibility, however remote, th at the government "might" have violated a "possible oral agreement" between the parties to r ecommend a sentence at the low end of the Guidelines.

"Issues concerning the interpretation a nd enforcement of a plea agreement are reviewed de novo." United States v. Paton , 535 F.3d 829, 835 (8th Cir. 2008) (internal quotations and citation omitted). "Plea agreemen ts are contractual in nature and should be interpreted according to ge neral contract principles. Due process may be violated if there is a breach of a prom ise that induced a guilty plea." United States v. Sanchez , 508 F.3d 456, 460 (8th Cir. 2007) (internal c itation omitted). "The party asserting the breach—here, the Defendant—has the burden of establishing a breach." United States v. Smith , 429 F.3d 620, 630 (6th Cir. 2005).

When an alleged oral promise is made prior to, or in conjunction with, a plea agreement, such promise cannot serve as an inducement to plead guilty when the-9- defendant's "plea agreement and plea-heari ng representations negate such a claim." United States v. Norris , 20 Fed. Appx. 582, 583 (8thCir. 2001) (unpublished per curiam) (declining to address defendant's ar gument that he was induced into pleading guilty by the government's oral promise of a substantial assistance motion). This is because, "[a]bsent special circumstances, a defendant—quite as much as the government—is bound by a plea agreement that r ecites that it is a complete statement of the parties' commitments." United States v. Connolly , 51 F.3d 1, 3 (1st Cir. 1995). Thus, "[a]n integration clause normally prevents a criminal defendant, who has entered into a plea agreement, from asserti ng that the government made oral promises to him not contained in the plea agreement itself." United States v. Hunt , 205 F.3d 931, 935 (6th Cir. 2000); see also United States v. Ahn , 231 F.3d 26, 36 (D.C. Cir. 2000) (stating that an integration clause, "[s]tanding alone," is "strong evidence that no implied promises existed—after all, inte gration clauses establish that the written plea bargain was adopted by the parties as a complete and exclusive statement of the terms of the agreement") (internal quotations and citation omitted).

The First Circuit, in re jecting a defendant's argument that the court should supplement the written plea agreement by "e ngrafting onto it the oral representation allegedly made by the United States A ttorney during the pre-plea negotiations," explained why such an argument is without merit:

The appellant's position flies in th e teeth of paragraph 22 of the Agreement, which states flatly th at the written document constitutes the complete agreement between the partie s and that the "United States has made no promises or representations except as set forth in writing in this plea agreement and deny [sic] the ex istence of any other terms and conditions not stated herein." Wh ere, as here, an unambiguous plea agreement contains an unqualified integration clause, it normally should be enforced according to its tenor. That means, of course, that an inquiring court should construe the written document within its four corners, "unfestooned with covenants the parties did not see fit to-10- mention." [ United States v. ] Anderson , 921 F.2d [335,] 338 [(1st Cir. 1990)].

United States v. Alegria , 192 F.3d 179, 185 (1st Cir. 1999); see also Smith , 429 F.3d at 630–31 (holding that integration clause in plea agreement precluded defendant from asserting that government had made oral promise to move for additional one-level reduction under Guidelines' acceptance of responsibility provision; defendant submitted no affidavit and did not seek evid entiary hearing to establish understanding outside four corners of agreement, and govern ment flatly denied that it had made any such promise); United States v. Cieslowski , 410 F.3d 353, 361 (7th Cir. 2005) ("The written plea agreement contains an integration clause and explicitly disclaims the effectiveness of any prior oral representation. Plea agreements are governed under the principles of contract law, and oral repres entations cannot alter the terms of a written agreement.") (internal citation omitted); United States v. Lenoci , 377 F.3d 246, 258 (2d Cir. 2004) (holding that a plea agreement did not prevent the government from arguing for an upward departure, pointing out that the agreement specifically stated that "the defendant acknowle dges that no other promises, agreements, or conditions have been entered into other than those se t forth in this plea agreement, and none will be entered into unless set forth in writing by all the parties").

Conversely, when an allege d oral promise is made s ubsequent to the defendant's entry of his guilty plea and is "not made as part of the inducement to plead guilty," then such a promise cannot serve as a "p art of the inducement or consideration underlying the guilty plea." United States v. Hart , 397 F.3d 643, 647 (8th Cir. 2005) (holding that government did not breach any promise it made to move for sentencing reduction based upon defendant's substantial assistance, in exchange for defendant setting up a "sting or buy/bust arrangement," by failing to move for such sentencing reduction, as the alleged promise was made between the time of sentencing and resentencing, so that it was not used as an inducement for the defendant to plead guilty, and defendant did not set up any type of "sting or buy/bust arrangement").-11- Applying the reviewed case law to the inst ant facts, we rej ect Leach's argument that he should have been permitted to a dvocate for a more lenient sentence because of the government's alleged breach of an oral promise. First, Leach has all but conceded that there was no definitive oral pr omise, as Leach simply alleges that the "government's recommendation was based on a possible oral agreement between the parties." Furthermore, at resentencing, Leach's attorney stated that he did not "personally recall any oral agreement be tween" the government and Leach. He also admitted that such promise was not c ontained in the written plea agreement. See Smith , 429 F.3d at 630–31 (finding that the defendant failed to produce sufficient evidence to establish a breach of the plea agreement where defendant's counsel "all but conceded that here had been no such pr omise" when he stated that both sides "do have different opinions on what was saidand what was—I wouldn't say as much promise, but what the understanding was when he entered his plea of guilty").

Second, as explained in Norris , Connolly , Hunt , and Alegria , if the alleged oral promise was made before Leach's entry of his guilty plea, then that promise would have been subsumed in, and superceded by, the written plea agreement. Paragraphs 11, 19, and 20 of the plea agreement indi cate that the written plea is the complete statement of the parties' commitments. See Connolly , 51 F.3d at 3. In fact, ¶ 20 of the plea agreement is an integration clause, which establishes that "the above-stated terms and conditions" contained in the written plea agreement "constitute the entire plea agreement between the parties, and that any other terms and conditions not expressly set forth in this agreement do not constitute any part of the parties' agreement and will not be enforceable against either party." Wewill enforce this integration clause, as it is "strong evidence" that no oral promise existed. See Ahn , 231 F.3d at 36. Furthermore, Leach reaffirmed at the ch ange-of-plea hearing that there were no5 Leach has not alleged that the districtcourt committed error during his changeof-plea hearing.
-12- promises "other than the Pl ea Agreement itself" that cau sed him to plead guilty. Leach is bound by this representation to the district court. 5

Finally, if the alleged oral promise was made after Leach entered his guilty plea, then such promise could not haveinduced him to enter his guilty plea. See Hart , 397 F.3d at 647; United States v. Quan , 789 F.2d 711, 714 (9th Cir. 1986) ("Postsigning discussions are irrelevant because th ey could not have induced [the defendant] to sign the agreement or plead guilty.").

III. Conclusion Accordingly, we affirm the judgment of the district court.

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