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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2003 Decided February 6, 2004

No. 01-3139

IN RE: SEALED CASE

Appeal from the United States District Court

for the District of Columbia

(No. 97cr00301–01)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender.

Lisa H. Schertler, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese

III and James H. Dinan, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Appellant appeals from a judgment of the District Court sentencing him to 121 months on

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

his bargained plea of guilty to possessing with intent to

distribute cocaine. On appeal, he contends that the government breached his plea agreement by failing to protect him

and his family from harm while he cooperated in ongoing

investigations, and by failing to inform the Departure Guideline Committee (DGC) and the sentencing court of the extent

of his cooperation. Because we find no reversible error, we

affirm the judgment of the District Court.

I.

On July 24, 1997, a federal grand jury in the District of

Columbia charged appellant in a four-count indictment with

possession with intent to distribute fifty grams or more of

cocaine base (in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(iii)), possession of a firearm by a convicted felon

(in violation of 18 U.S.C. § 922(g)(1)), possession of ammunition by a convicted felon (same provision), and possession of a

firearm with an obliterated, removed, and altered serial number (in violation of 18 U.S.C. § 922(k)). On September 30,

1997, pursuant to a written plea agreement, appellant entered

a guilty plea to the first count of the indictment, charging

possession with intent to distribute. Among the terms of the

agreement, in addition to the obvious exchange of the plea of

guilty to one count in return for the dismissal of others,

appellant agreed to cooperate with the government. In return, the government agreed that if the departure committee

of the United States Attorneys’ Office determined that the

appellant had provided ‘‘substantial assistance,’’ it would file a

motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

permitting the court to depart below the otherwise applicable

Guideline range and/or mandatory minimum sentence. The

government also agreed that it would ‘‘take any and all

necessary reasonable measures to protect [appellant’s] and

his family’s safety,’’ possibly ‘‘includ[ing] the obtaining of a

section 8 voucher to allow [appellant’s] family to [sic] other

public assistance housing.’’

Over the next four-year period, the District Court held a

series of status conferences in which the parties informed the
3

court of the progress of appellant’s cooperation. While some

of these reports were favorable, others displayed difficulties

of varying severity and revealed the government’s varying

levels of satisfaction with appellant’s cooperation. Finally, on

November 13, 2001, the government filed a motion advising

the court of the defendant’s failure to cooperate, declaring

that the appellant had ‘‘agreed to cooperate with the government by providing information and participating in covert

operations’’ involving a known and notorious drug gang. The

government’s motion further stated that defendant had failed

‘‘to comply with the terms of his plea agreement to cooperate,’’ and that he was ‘‘not entitled to a downward departure

from the Guidelines.’’ Following the filing of the motion, the

parties appeared for sentencing on November 15, 2001. The

prosecutor advised the court that consistent with the government’s November 13 filing, the United States would not be

filing a motion for departure under U.S.S.G. § 5K1.1 and that

the court should proceed to sentencing in accordance with the

Guideline range.

Defendant and his counsel made no objection to the government’s description of appellant’s failure to cooperate and did

not dispute the government’s determination that no 5K1.1

departure was warranted. The court sentenced appellant to

a term of confinement of 121 months, the bottom of the

Guideline range, followed by a five-year period of supervised

release.

Despite the silence of appellant on the subject in the

District Court, he contends on appeal that the United States

breached the plea agreement in two respects and that he is

therefore entitled to resentencing. He first contends that the

government failed in its obligation under the bargain to

protect him and his family. Second, he contends that the

government breached the plea agreement by failing to inform

the DGC and the District Court of cooperation he allegedly

provided to the government. Although he concedes that he

was unable to do everything that the government asked of

him, he contends that the committee would have approved a

substantial assistance downward departure if it had been

‘‘accurately informed’’ of his cooperation.
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II.

Before determining the merits of appellant’s argument, we

must first determine the appropriate standard of review.

Appellant, who prays for a remand with an order for specific

performance of his plea bargain, contends that in an appeal

relying on the breach of a plea agreement, the Court of

Appeals should consider the questions de novo. Appellant’s

argument for this standard of review rests primarily on three

cases. United States v. Jones, 58 F.3d 688 (D.C. Cir.), cert.

denied, 516 U.S. 970 (1995); United States v. Wolff, 127 F.3d

84 (D.C. Cir. 1997), cert. denied, 524 U.S. 929 (1998); and

Santobello v. New York, 404 U.S. 257 (1971). Jones holds

that ‘‘the interpretation of a plea agreement’s terms is a pure

matter of law.’’ Id. at 691. In Wolff, appellant contends that

we remanded the case for resentencing and specific performance based on a breach of plea agreement by the government

where the claim of breach was raised for the first time on

appeal. In Santobello, the Supreme Court directed that

‘‘when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part

of the inducement or consideration, such promise must be

fulfilled.’’ Id. at 262. Each of these propositions is in itself

unassailable. However, taken together, they do not inexorably lead to appellant’s conclusion that we should consider this

matter de novo and grant him the relief sought.

The Jones Court, in the quoted passage, was not considering the standard of review to apply to a claim of breached

plea agreement raised for the first time on appeal. Rather,

that Court was delineating the standard it would apply in

construing the terms of a plea agreement, the breach of

which had been asserted, argued, and considered at the

District Court level. 58 F.3d at 690. In Wolff, concededly,

we granted a remand for specific performance of a plea

bargain based on a breach not asserted in the District Court.

However, Wolff involved an extraordinary circumstance not

present in the case before us. In Wolff, the government,

exercising what we described as ‘‘commendable candor,’’ 127

F.3d at 86, confessed its breach of the plea agreement in the

trial court and joined in the petition for remand. The only
5

issue before us in Wolff was the breadth of the relief after

remand. Like Jones, that decision has nothing to do with the

standard of review applicable to a disputed breach of a plea

agreement not raised in the trial court.

Appellant offers Santobello for the proposition that he is

entitled to the relief prayed. He further argues that Santobello establishes that ‘‘[c]ontractual breaches by the government are not ‘errors’ subject to Rule 52’’ of the Federal Rules

of Criminal Procedure. True, Santobello does teach that the

sentencing judgment entered after the prosecution’s breach

of a plea agreement must be vacated on appeal and the case

remanded for further proceedings and new sentencing consistent with the interest of justice. However, Santobello, like

Wolff, involved the prosecution’s concession of a breached

plea agreement. Further, Santobello, like Jones, was entered

on review of an objection raised in the trial court. In no way

does Santobello dictate the standard of review for a case like

the one before us. Here, a defendant accuses the prosecution

of breaching the plea agreement, for the first time on appeal,

and the prosecution denies the charge. In short, none of the

cases relied upon by appellant adopted a standard of de novo

review on the question before us, and neither do we.

III.

Having rejected the de novo review proposed by appellant,

we join the substantial majority of circuits holding that when

a defendant raises a claim of breached plea bargain for the

first time on appeal, the reviewing court should apply a plain

error standard of review consistent with Fed. R. Crim. P.

52(b). See United States v. Barnes, 278 F.3d 644, 646 (6th

Cir. 2002); United States v. Matchopatow, 259 F.3d 847, 851

(7th Cir. 2001); United States v. Saxena, 229 F.3d 1, 5 (1st

Cir. 2000); United States v. Maldonado, 215 F.3d 1046, 1051

(9th Cir.), cert. denied, 531 U.S. 1172 (2001); United States v.

Thayer, 204 F.3d 1352, 1356 (11th Cir. 2000); United States v.

Cohen, 60 F.3d 460, 462–63 (8th Cir. 1995); United States v.

Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994); United States v.

Fant, 974 F.2d 559, 564–65 (4th Cir. 1992).
6

In holding that the plain error standard set forth in Rule

52(b) applies, we recognize that the Rules of Criminal Procedure do not directly address this circumstance or mandate

the application of that standard. Rule 52(b) by its terms

states that ‘‘a plain error that affects substantial rights may

be considered even though it was not brought to the court’s

attention.’’ This rule, then, is an alternative to Rule 51

which, at the time of the district court’s ruling, permitted a

defendant to preserve his claim of error by ‘‘mak[ing] [it]

known to the court the action which [he] desires the court to

take or [his] objection to the action of the court and the

grounds therefor.’’ Fed. R. Crim. P. 51 (2001). Appellant

did not preserve his claim under Rule 51, however, because

the relevant time for objecting was at the time of sentencing.

See United States v. Williams, 350 F.3d 128, 128 (D.C. Cir.

2003). Rule 52 has no similar requirement for preserving a

claim of error, and plain error is therefore the correct standard of review.

In fact, some circuits have moved in the direction of the

application of the sort of de novo rule for which appellant

opts. See United States v. Peterson, 225 F.3d 1167, 1170

(10th Cir.), cert. denied, 531 U.S. 1121 (2001); United States

v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999); United States v.

Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 1989). United

States v. Corsentino, 685 F.2d 48 (2d Cir. 1982), is cited for

the proposition that the Second Circuit follows the minority

rule. The Corsentino court did not clearly choose between

the standards. In fact, that court states, ‘‘[w]e do not doubt

that in some circumstances the impending violation of a plea

agreement may be so clearly anticipated that a defendant’s

failure to object to what is about to happen can fairly be

taken to be a waiver of compliance with the agreement.’’ 685

F.2d at 50. It was only the fact that ‘‘[t]he defendant had no

opportunity to object to the prosecutor’s submission of a

sentencing memorandum’’ that made the circuit decide in

favor of de novo review in that case. Id. So, like our own

decision in Wolff, Corsentino actually addresses a different

question than the one before us, although its language concerning ‘‘waiver’’ is instructive. First, we note that in light of
7

the Supreme Court’s semantic distinction between the concepts of ‘‘waiver’’ and ‘‘forfeiture’’ in United States v. Olano,

507 U.S. 725 (1993), issued subsequent to the Corsentino

decision, the proper terminology is ‘‘forfeiture’’ rather than

‘‘waiver.’’ ‘‘Forfeiture, as opposed to waiver, does not extinguish an ‘error’TTTT’’ As the Supreme Court reasoned in

Olano, a waiver extinguishes an error so that there is no

review, because the defendant has knowingly and personally

given up the waived right. In the case of a forfeiture, a legal

rule may have been violated, ‘‘and if the defendant did not

waive the rule, then there has been an ‘error’ within the

meaning of [the Federal Rules] despite the absence of a

timely objection.’’ Id. at 734. Thus, where there has not

been a knowing waiver completely extinguishing a right, but

silence on the part of the appealing party has prevented

examination by the trial court, the error is said to have been

‘‘forfeited’’ rather than ‘‘waived.’’ Id. With that semantic

amendment, we join the analysis of the Corsentino Court. It

appears to us that forfeiture is precisely what occurs when a

defendant has an opportunity to object to the breach of the

plea agreement and does not do so.

Therefore, as the First Circuit stated, ‘‘[w]hen a defendant

has knowledge of conduct ostensibly amounting to a breach of

a plea agreement, yet does not bring that breach to the

attention of the sentencing court, we review only for plain

error.’’ 229 F.3d at 5. See also United States v. Barnes, 278

F.3d at 646 (‘‘Defendant waived his right to appeal any

breach of the plea agreement, and a plain error analysis thus

guides this Court’s review.’’); United States v. Maldonado,

215 F.3d at 1051 (‘‘With few narrow exceptions, breach of plea

agreement issues not presented to the trial court cannot be

raised for the first time on appeal.’’); United States v. Thayer, 204 F.3d at 1356 (‘‘[Defendant] failed to object at trial;

therefore, she has waived the issue on appeal, unless the

deviation can overcome the plain error standard.’’).

The Eighth Circuit in Cohen, in discussing a claim of

breached agreement and concluding that a forfeiture of any

such objection occasioned review under the plain error standard, stated: ‘‘[defendant] could have taken several steps in

response to the prosecutor’s statement [allegedly breaching
8

the plea agreement].’’ 60 F.3d at 462. As that circuit further

explained, the defendant ‘‘could have raised an immediate

objection,’’ or ‘‘could have asked for a continuance for the

purpose of’’ examining the Assistant United States Attorney

who had made the bargain, or ‘‘could have restated the terms

of the agreement in open court’’ and alleged its breach. Id.

The Eighth Circuit held that having ‘‘elected to take none of

these actions, he can not now raise an eleventh-hour attack on

the validity of his plea.’’ Id. We find this logic unassailable,

and apply plain error review here.

The few cases in the minority offer no convincing reasoning

to the contrary. The Tenth Circuit decision in Peterson

relies entirely on precedent of circuit law, which traces back

to United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir.

1989). Shorteeth simply adopted the Second and Third Circuit’s view without analysis, citing United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 1989), and Paradiso v.

United States, 689 F.2d 28, 30 (2d Cir. 1982). Unlike the

Peterson panel, we are not bound by the circuit law of the

Tenth Circuit.

As to the Third Circuit decision in Moscahlaidis, it does

not appear to us that that case actually adopts the de novo

review standard for which it is cited. As applicable here, the

reasoning of that case broke the review into two parts.1

 The

first step was the review of the ‘‘facts of the case, i.e., what

are the terms of the agreement and the conduct of the

government.’’ 868 F.2d at 1360. The second step was

‘‘whether the conduct of the government violated the terms of

the plea agreement.’’ Id. As to the first question, the one

which is determinative in the present case, the Third Circuit

expressly held ‘‘[t]he facts of the case, if disputed, are determined by the district court and our review of those findings is

limited to a clearly erroneous standard.’’ Id. (citing United

States v. Carrillo, 709 F.2d 35 (9th Cir. 1983)). It was only as

to the distinct question of ‘‘whether the government’s conduct

violates the terms of the plea agreement’’ that the court held

1 A third part discussing remedy is not here relevant. See 868

F.2d at 1360 (citing Santobello v. New York, 404 U.S. 257 (1971)).
9

the issue to be ‘‘a question of law,’’ for plenary review. Id.

As appellant’s silence in the case before us prevented the

District Court from finding the facts, were we to follow the

Third Circuit by its terms, we would still be unable to subject

the alleged error to de novo review, as we certainly could not

find plain error in facts which the District Court was never

called upon to find.

The Second Circuit decision in Paradiso, relied upon by the

Tenth Circuit in Shorteeth, is also founded on circuit precedent with little or no further reasoning. The circuit precedent upon which the Paradiso court relied was Corsentino,

which we have already noted, is distinguishable and not

persuasive on the facts before us.

In short, we join the majority of circuits that hold that a

defendant who has the opportunity and knowledge to object

to an alleged breach of plea agreement by the prosecution

cannot successfully assert it for the first time on appeal,

unless his objection can survive plain error review. This

standard is not only supported by well-reasoned cases in the

majority of circuits, but is totally consistent with the antisandbagging philosophy of the Federal Rules as set out in

Fed. R. Crim. P. 51 and 52. As the Ninth Circuit observed in

United States v. Flores–Payon, 942 F.2d 556, 560 (9th Cir.

1991), the fact-specific nature of an allegation of breach of

plea agreement makes it ‘‘precisely the type of claim that a

district court is best situated to resolve.’’ Agreeing with that

holding, we will proceed to review the allegation of breached

plea agreement under the plain error standard.

IV.

We note that the standard of review may make less difference than warrants the emphasis put upon it by the parties,

and by this opinion thus far. While appellant’s forfeiture in

the trial court makes it impossible for us to answer with

certainty, there is little in the record to suggest that the

government breached its plea agreement under any standard

of review. Nonetheless, we will proceed with the application

of the plain error standard.
10

Under the plain error standard, before an appellate court

can act upon an error not raised at trial, ‘‘there must be (1)

‘error’ (2) that is ‘plain’ and (3) that ‘affects substantial

rights.’ ’’ Johnson v. United States, 520 U.S. 461, 467 (1997)

(citations and internal punctuation omitted). Even if all three

of these conditions are met, ‘‘an appellate court may TTT

exercise its discretion to notice a forfeited error TTT only if (4)

the error ‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’ ’’ Id. (citations and internal punctuation omitted). On the record before us, we find

that the appellant has failed to establish the critical first and

second conditions of plain error review: he has not shown us

error, certainly not one that is plain.

The word ‘‘plain’’ as used by the Supreme Court in outlining the four-part test for plain error ‘‘is synonymous with

‘clear’ or, equivalently ‘obvious.’ ’’ Id. (citations and internal

punctuation omitted). The error which appellant asserts–that

is the breach of the two provisions of the plea agreement–is

anything but clear or obvious. Appellant’s best argument

that there is record support for the claimed breach of the

family protection provision is his own statement in the District Court that he could not satisfy the government’s cooperation demands without endangering his family. Since the

record does not support either the objectivity of his fear, or

that some failure by the government caused it, we can hardly

hold that the record makes it clear or obvious that the

government breached that provision. As to appellant’s alternative claim that the government breached its promise to

provide the departure committee and the sentencing court

with accurate information as to the nature and extent of his

cooperation, the record is at best ambiguous. Particularly

given the considerable discretion vested in the prosecution

under U.S.S.G. § 5K1.1, we cannot conclude that an ambiguous record supports the sort of plain, clear, or obvious error

necessary to set aside the judgment in this case.

Conclusion

For the reasons set forth above, we conclude that appellant

has established no error, let alone one cognizable under the
11

plain error standard. The judgment appealed from is therefore

Affirmed.