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 (8th 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,2

 the district court3 sentenced Leach to 120
Guidelines 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 government'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 violation 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 agreement, 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 after [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 departure from the Guidelines or a

sentence outside the Guidelines range. The agreement by the parties to
-3-

not seek a departure from the Guidelines 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 that is not "unreasonable" . . . .

Additionally, ¶ 11 of the plea agreement specified that both Leach and the

government acknowledged and agreed "that there are no agreements between the

parties with respect to any Sentencing Guidelines 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 respective positions at the sentencing hearing." 

In ¶ 15 of the plea agreement, Leach waived his appellate and post-conviction

rights. In ¶ 19, Leach affirmed that "no threats 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 terms 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 reaffirmed that there were no promises

"other than the Plea Agreement 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 bottom of the guideline range . . . after the final calculation."

The government argued that the correct Guidelines 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 inadvertently 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 government then made three separate sentencing

recommendations based on the three Guidelines ranges that might potentially have

applied to Leach, each time recommending a sentence 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 some discussion on the record and just

with Mr. Moss on whether the Government orally agreed to recommend

the bottom of the guideline range, essentially [neither]4

 Mr. Moss [n]or

the Government can remember if there was an oral agreement to that. 

The district court sentenced Leach to 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 exchange occurred between the court and the

government:

THE COURT: The Government's commitment 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't ask 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 interjected that, as he remembered 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 that 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 sentencing, which would be 60 months. I

can't really say that I have any documentation other than my recollection

of what was discussed at the sentencing hearing. 

The court acknowledged that its recollection, 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 recess to refresh her memory by reviewing a transcript of the

initial sentencing hearing. The recess request 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 that the government might have made to Leach's

attorney. 
-6-

After the recess, the government's attorney stressed the seriousness of the

offense and emphasized that Leach was likely to reoffend. She emphasized that

nothing in the record indicated that the parties had, in fact, reached any 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 agreement" there might have been regarding a sentencing

recommendation and that the parties had only discussed "the mere possibility of an

oral agreement." The government's attorney then stated:

If there was an oral agreement, there is nothing in the Plea Agreement

that restricts the Government asking for the top of the Guidelines range,

and if there was an oral agreement 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 being 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 the range. The transcript very clearly

at the prior hearing states that we think 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 under 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 remember 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 agreement at the prior sentencing that Mr.

Moss is referencing, I have the transcript 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 the doubt at that hearing and the idea

there may have been an oral agreement. There is no evidence to support

that. The record very clearly reflects that. No one can remember if there

was or not.

There is no basis for an objection either 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' imprisonment. 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 government's breach of the oral agreement to

recommend the bottom of the Guidelines range should permit him 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 required 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 underlying details, the government['s] conduct at the original

sentencing established that such recommendation 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 Guidelines range, the government's advocacy

for a more severe sentence could have affected 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, that the government "might" have violated

a "possible oral agreement" between the parties to recommend a sentence at the low

end of the Guidelines. 

"Issues concerning the interpretation and 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 agreements are contractual in nature and should

be interpreted according to general contract principles. Due process may be violated

if there is a breach of a promise that induced a guilty plea." United States v. Sanchez,

508 F.3d 456, 460 (8th Cir. 2007) (internal citation 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-hearing representations negate such a claim."

United States v. Norris, 20 Fed. Appx. 582, 583 (8th Cir. 2001) (unpublished per

curiam) (declining to address defendant's argument 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 recites 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 asserting 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, integration 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 rejecting a defendant's argument that the court should

supplement the written plea agreement by "engrafting onto it the oral representation

allegedly made by the United States Attorney during the pre-plea negotiations,"

explained why such an argument is without merit:

The appellant's position flies in the teeth of paragraph 22 of the

Agreement, which states flatly that the written document constitutes the

complete agreement between the parties 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 existence of any other terms and

conditions not stated herein." Where, 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 evidentiary hearing to establish understanding

outside four corners of agreement, and government 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 representations 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 acknowledges that no other promises, agreements, or conditions

have been entered into other than those set forth in this plea agreement, and none will

be entered into unless set forth in writing by all the parties").

Conversely, when an alleged oral promise is made subsequent 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 "part 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 instant facts, we reject Leach's argument

that he should have been permitted to advocate 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 promise, 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 between" the government and Leach. He also

admitted that such promise was not contained 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 promise" when he stated that both sides "do

have different opinions on what was said and 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 indicate 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." We will 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 change-of-plea hearing that there were no
5

Leach has not alleged that the district court committed error during his changeof-plea hearing. 

-12-

promises "other than the Plea Agreement itself" that caused 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 have induced 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 they could not have induced [the defendant]

to sign the agreement or plead guilty."). 

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

______________________________