FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-50078

v. D.C. No.  CR-04-02162-LAB TED ALLEN, aka; Ted Alan

Wachtin, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

November 17, 2005—Pasadena, California

Filed January 12, 2006

Before: William C. Canby, Jr., Ferdinand F. Fernandez, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

525
COUNSEL

Norma A. Aguilar, San Diego, California, argued the case and

was on the briefs for the defendant-appellant. 

Michelle P. Jennings, Assistant U.S. Attorney, San Diego,

California, argued the case and was on the briefs; Carol C.

Lam, U.S. Attorney, and Roger W. Haines, Jr., Assistant U.S.

Attorney, San Diego, California, were on the briefs for the

plaintiff-appellee.

OPINION

BERZON, Circuit Judge: 

Ted Allen was sentenced to twelve months imprisonment

and three years supervised release after a plea of guilty for

counterfeiting. At the sentencing hearing, the district court

applied an enhancement not addressed in the plea agreement.

Because the district court did not make the proper findings in

considering the enhancement, we reverse and remand to pro528 UNITED STATES v. ALLEN
vide it the opportunity to do so. We also conclude that the

government did not breach the plea agreement by presenting

a witness at the sentencing hearing as requested by the district

court and questioning him. We therefore affirm the district

court’s decision in that respect. 

I. Background

On September 9, 2004, Ted Allen pleaded guilty to charges

that he “knowingly bought, sold, exchanged, transferred,

received or delivered a false, forged, or altered obligation or

other security of the United States; to wit: counterfeit $100

Federal Reserve Notes; and did so with the intent that the

obligation be passed, published, or used as true and genuine.”

The plea agreement stated that on or about May 25, 2004,

Allen sold fourteen counterfeit $100 bills to an individual

who knew that they were counterfeit. There was no charge in

the superseding information to which Allen pleaded guilty

alleging that Allen had manufactured any of the fourteen

counterfeit $100 bills or possessed any counterfeiting devices

or materials used in connection with them, nor did the plea

agreement address any such allegations. 

The plea agreement stated that the parties would “jointly

recommend” the following guideline calculations: 

1. Base Offense Level [USSG § 2B5.1] 9

2. Increase because Defendant possessed +2

or controlled counterfeiting paper 

similar to a distinctive paper 

3. Acceptance of Responsibility [§ 3E1.1] -2

Total Offense Level 9

Allen was permitted to request additional departures and

adjustments, and the government was allowed to oppose such

UNITED STATES v. ALLEN 529
requests. There was a provision in the plea agreement that the

court was not bound by the plea agreement. 

On January 24, 2005, the district court conducted a hearing

on Allen’s sentencing. The Pre-Sentence Report (PSR) presented at that hearing recommended a total offense level of

fifteen. This recommendation differed from that contained in

the plea agreement because the probation officer who prepared the PSR determined that U.S. Sentencing Guidelines

Manual (Guidelines) sections 2B5.1(b)(2)(A) and (b)(3)

applied.1 Section 2B5.1(b)(2)(A) imposes a two-level increase

on a defendant who has “manufactured or produced any counterfeit obligation or security of the United States, or possessed

or had custody of or control over a counterfeiting device or

materials used for counterfeiting.” Section 2B5.1(b)(3) raises

the total offense level to fifteen if (b)(2)(A) applies and the

resulting offense level is less than fifteen. 

In an effort to determine whether the probation officer’s

recommendation was appropriate, the district court first asked

the prosecutor whether materials used for counterfeiting had

been found at Allen’s residence. When the prosecutor

responded that the search had uncovered a press,2 the district

court asked whether the prosecutor could bring in the secret

service agent who could testify regarding what was found at

Allen’s residence. The prosecutor stated that she could probably locate the agent. The district court then asked the prosecutor to call the secret service agent to the stand to testify as to

what had been found at Allen’s house. Before doing so, the

prosecutor clarified that the government stood by the recommendation to which it had stipulated in the plea agreement

and that it was the district court that requested the testimony,

stating: “To clarify, the United States is standing by its plea

agreement and standing by its calculations. To clarify, your

1Unless otherwise indicated, all references to the United States Sentencing Guidelines Manual are to the 2004 edition. 

2That response was erroneous, as it turned out. 

530 UNITED STATES v. ALLEN
honor, the court would like information from the case agent

regarding whether Mr. Allen had custody and control over a

counterfeiting device or materials used for counterfeiting?”

Defense counsel objected, stating that she “anticipate[d] making an argument on breach.”

Under questioning by both the prosecution and the judge,

the secret service agent, Agent Graf, testified that he and other

agents had discovered in Allen’s trash “shreddings of counterfeit,” “spray adhesive, the box for a shop press,[3

] [and] rollers used to roll out each bill that was glued together.” The

district court then held that the PSR was correct and the calculation in the plea agreement incorrect. Defense counsel noted

that the Guidelines instruct that 2B5.1(b)(2)(A) is not to apply

“to persons who produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to

only minimal scrutiny.” U.S. Sentencing Guidelines Manual

§ 2B5.1 cmt. n.4. The district court never addressed the argument. Defense counsel argued that the prosecution had

breached the plea agreement, but the district court rejected the

argument. 

The district court went on to determine that the offense

level was fifteen, based on an enhancement for custody of

materials used in counterfeiting, minus two for acceptance of

responsibility for a total offense level of thirteen. The court

sentenced Allen to the bottom of the Guidelines range, twelve

months, with three years of supervised release. The plea

agreement specifically reserved Allen’s right to appeal if the

sentence was greater than ten months. Allen appeals from this

sentence. 

3A “shop press” is “a machine that’s used to press paper together, to

apply a signature on with pressure.” In Agent Graf’s experience, this tool

could be used to manufacture counterfeit bills. 

UNITED STATES v. ALLEN 531
II. Standard of Review

Allen argues that the district court misinterpreted the

Guidelines in determining his sentence. The district court recognized that the Guidelines are no longer mandatory but

stated that it was using them as persuasive guidance. As the

district court’s interpretation of the Guidelines essentially

controlled its determination of Allen’s sentence, we review its

interpretation de novo. See United States v. Smith, 424 F.3d

992, 1015 (9th Cir. 2005) (citing United States v. Kimbrew,

406 F.3d 1149, 1152 (9th Cir. 2005)). 

Where the defendant claims that the government breached

the plea agreement and raises an objection to the alleged

breach in the district court, the review is de novo. See United

States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000).

III. Application of the Enhancement

A. Mootness 

[1] Allen was released November 10, 2005, before the

scheduled oral arguments in this case. His three years of

supervised release began then. We have previously established, however, that where a defendant has received a sentence that includes a period of supervised release, a challenge

to the length of his sentence of imprisonment is not moot

because the district court has discretion regarding the length

of supervised release, see 18 U.S.C. § 3583(a)-(b), and can

change the supervised release period, see § 3583(e)(2). See

Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir. 2005). 

[2] Here, the district court could resentence Allen to a

shorter term of supervised release in light of a shorter appropriate term of imprisonment or to no term of supervised

release. See id. at 994-95 (citing Gunderson v. Hood, 268

F.3d 1149, 1153 (9th Cir. 2001)); United States v. Verdin, 243

532 UNITED STATES v. ALLEN
F.3d 1174, 1178 (9th Cir. 2001).4

 A district court must sentence a defendant to supervised release if the statute so

requires, but this statute does not. See 18 U.S.C. § 473. The

length of the imprisonment sentence is therefore not moot. 

B. The Sentencing Guidelines and Application Note 4

[3] After considering the PSR, the district court decided

that section 2B5.1(b)(2)(A) applies. As noted, subsection

(b)(2)(A), in conjunction with subsection (b)(3), increases to

fifteen the level of the offense of counterfeiting where the

defendant has “manufactured or produced any counterfeit

obligation or security of the United States, or possessed or

had custody of or control over a counterfeiting device or

materials used for counterfeiting.” The information to which

Allen pleaded guilty alleged only knowing sale of counterfeit

currency, not possession of counterfeiting devices or material.

The district court therefore conducted an evidentiary hearing

regarding whether Allen had possessed counterfeiting devices

or materials, as that additional fact was pertinent in applying

the Guidelines. At the end of the hearing, the district court

found that Allen had possessed materials used for counterfeiting and, applying subsections (b)(2)(A) and (b)(3), held that

the appropriate Guidelines level was fifteen. 

[4] Application Note 4 to section 2B5.1, however, states

that “[s]ubsection (b)(2)(A) does not apply to persons who

produce items that are so obviously counterfeit that they are

unlikely to be accepted even if subjected to only minimal

scrutiny.” U.S. Sentencing Guidelines Manual § 2B5.1 cmt.

n.4. In applying subsection (b)(2)(A), the district court did not

consider the quality of any notes. Allen argues that the district

court therefore erroneously applied the enhancement. 

4The Guidelines mandate supervised release only for sentences of more

than one year. See U.S. Sentencing Guidelines Manual § 5D1.1(a). 

UNITED STATES v. ALLEN 533
Few cases have considered the applicability of Application

Note 4. All of those cases, moreover, addressed an earlier version of the Application Note which excluded from subsection

(b)(2)(A) those who “merely photocopy notes or otherwise

produce [counterfeit] items.” U.S. Sentencing Guidelines

Manual § 2B5.1 cmt. n.4 (2000); see also U.S. Sentencing

Guidelines Manual § 2B5.1 cmt. n.3 (1995). The cases interpreting the predecessors to present Note 4 concerned enhancements for photocopying counterfeit notes and did not address

the application of Note 4 to those in possession of counterfeiting devices. See, e.g., United States v. Miller, 77 F.3d 71, 76

(4th Cir. 1996); United States v. Taylor, 991 F.2d 533, 535

(9th Cir. 1993); United States v. Bruning, 914 F.2d 212, 213

(10th Cir. 1990).

Note 4 does not differentiate between the manufacturing

and possession of counterfeiting devices aspects of subsection

(b)(2)(A). Rather, it applies across the board, advising that the

enhancement under subsection (b)(2)(A)—and, consequently,

the offense level of fifteen prescribed by subsection (b)(3)—

“does not apply” to obviously counterfeit currency. As application notes to Guidelines provisions must be used in determining the proper offense level, see United States v.

Hernandez-Sandoval, 211 F.3d 1115, 1117 n.3 (9th Cir.

2000), Note 4 requires consideration of the notes produced

through use of the counterfeiting devices or materials possessed. 

The government maintains, however, that Note 4 cannot

apply to persons who merely have “custody of or control over

a counterfeiting device or materials used for counterfeiting,”

U.S. Sentencing Guidelines Manual § 2B5.1(b)(2)(A),

because there may be no counterfeit currency for the factfinder to scrutinize in deciding whether the items would pass

minimal scrutiny. We are not at liberty to ignore the wording

of the commentary, which is not restricted solely to the “manufactured or produced” language of (b)(2)(A). The Commission could have subdivided subsection (b)(2)(A) as it did

534 UNITED STATES v. ALLEN
subsection (b)(2)(B), but failed to do so. There is, consequently, no basis in the language or structure of the Guidelines for the distinction the government propounds. 

Nor is there a practical problem with applying Note 4 to all

rather than part of subsection (b)(2)(A) sufficient to justify a

less than literal reading of the Note. Cf. County of Santa Cruz

v. Cervantes (In re Cervantes), 219 F.3d 955, 960-61 (9th Cir.

2000) (“[W]hile the plain language of a statute is not always

conclusive, we ignore plain language only when a ‘literal

interpretation would thwart the purpose of the over-all statutory scheme or lead to an absurd result.’ ” (quoting Wilshire

Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801, 804

(9th Cir. 1989))). 

[5] Subsection (b)(2)(A) applies only to a defendant who

“had custody of or control over a counterfeiting device or

materials used for counterfeiting.” U.S. Sentencing Guidelines Manual § 2B5.1(b)(2)(A) (emphasis added). The “Background” section of the Guidelines Commentary explains,

“Possession of counterfeiting devices to copy obligations . . .

of the United States is treated as an aggravated form of counterfeiting because of the sophistication and planning involved

in manufacturing counterfeit obligations . . . .” Id. § 2B5.1

cmt. background (emphasis added). Moreover, in amending

subsection (b)(2)(A) in 2001, the Sentencing Commission

reiterated that the intent of the enhancement is to “ensure

some degree of additional punishment for all offenders who

engage in manufacturing activity.” U.S. Sentencing Guidelines Manual app. C, amend 618 (2001) (emphasis added). 

[6] Thus, the enhancement was meant to apply only where

there is some linkage to the actual production of counterfeit

obligations. We therefore conclude, on the basis of the language of the enhancement and the Commission’s commentary, that the enhancement applies only if the devices or

materials are “used for counterfeiting,” id. § 2B5.1(b)(2)(A)

(emphasis added), by someone. Possession or custody over

UNITED STATES v. ALLEN 535
devices or materials that could be used for counterfeiting but

have not been does not count. 

The Eleventh Circuit came to the opposite conclusion in

United States v. Castillo, 928 F.2d 1106, 1108 (11th Cir.

1991). That opinion is, however, not persuasive in this case,

because the enhancement provision was amended in 2001 in

a way inconsistent with the result in Castillo. 

Castillo interpreted subsection (b)(2)(A) to apply to possession of a counterfeit deterrent. See id. at 1107-08. Section

2B5.1 was amended in 2001, however, to add subsection

(b)(2)(B), specifically addressing possession of counterfeit

deterrents. The enhancement to the offense level of fifteen

applies only to (b)(2)(A), not to (b)(2)(B). See U.S. Sentencing Guidelines Manual § 2B5.1(b)(3). Thus, the provision that

Castillo relied on, subsection (b)(2)(A), no longer applies to

the circumstance to which Castillo applied it. The Commission provided a lesser enhancement in that circumstance, in

effect rejecting the result reached in Castillo. Further, the

Eleventh Circuit did not have the benefit of the “Reason for

Amendment” discussion that accompanied the 2001 amendment, making clear that subsection (b)(2)(A) is meant to apply

to offenders who “engage in manufacturing activity.” That

commentary confirms that it is crucial that someone have

“used” the device or material possessed by the defendant to

be subject to the enhancement; otherwise there has been no

“manufacturing activity” in which the defendant is engaged.

Ordinarily, the government’s proof that counterfeit devices

or materials were “used” to produce counterfeit obligations

will consist of the obligations thus produced. In this case, for

example, the government could presumably present to the

court the fourteen counterfeit bills Allen sold, as long as there

is a basis for linking those bills to the materials used for counterfeiting. Where notes were successfully passed to someone

who did not know of their origin, no further testimony on

quality may be necessary. See Miller, 77 F.3d at 76 (declining

536 UNITED STATES v. ALLEN
to apply the exception to the enhancement and remanding to

the district court for factfinding where one of the counterfeit

bills was successfully passed); see also United States v. Stanley, 23 F.3d 1084, 1086 (6th Cir. 1994) (declining to apply the

exception to the enhancement where multiple counterfeit bills

were successfully passed). Here, however, Allen’s bills went

only to a person who knew that they were counterfeit. Expert

testimony could establish the quality of the counterfeit obligations that particular devices or materials were used to produce

or the likely quality of such obligations if the counterfeits

themselves are for some reason not available. 

We do not, however, decide whether expert testimony is

necessary for this purpose, or whether the court could decide

on the basis of its own perception of the phony currency documents that they are or are not of such quality that they are

“unlikely to be accepted even if subjected to only minimal

scrutiny.” U.S. Sentencing Guidelines Manual § 2B5.1 cmt. 4.

Our point, instead, is that the nature of the necessary evidence

is the same in all the circumstances covered by the enhancement. Whether the enhancement is based on manufacturing

and production or on possession of counterfeiting devices or

materials, the notes are likely to be available but may not be,

and the notes may be obviously sufficiently realistic that Note

4 does not apply, or there may be need for further evidentiary

proof on the point. Put another way, as the counterfeiting

devices or materials must be “used,” no special evidentiary

problem arises from applying Note 4 as written. 

At oral argument, the government largely abandoned its

contention that Note 4 applies to some but not all of subsection (b)(2)(A) and instead relied on the narrower proposition

that the burden of proof under Note 4 in establishing the quality of the counterfeit currency is on the defendant. We do not

agree. 

In general, “the burden of proof falls on the party seeking

to adjust the offense level.” United States v. Howard, 894

UNITED STATES v. ALLEN 537
F.2d 1085, 1089-90 (9th Cir. 1990) (citing with approval

United States v. McDowell, 888 F.2d 285, 291 (3d Cir.

1989)); see also United States v. Ameline, 409 F.3d 1073,

1085-86 (9th Cir. 2005) (en banc); United States v. Burnett,

16 F.3d 358, 361 (9th Cir. 1994) (“The government bears the

burden of proving, by a preponderance of the evidence, the

facts necessary to enhance a defendant’s offense level under

the Guidelines.”).5 Thus, the defendant does not bear the burden of proof with regard to sentencing enhancements, as it is

not the defendant who is seeking a higher offense level.6See

United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.

2003). The government maintains that this basic principle

does not apply here because Note 4 establishes either an

exception or an affirmative defense, and the burden should be

on the proponent of the exception or affirmative defense. See,

e.g., United States v. Culps, 300 F.3d 1069, 1081-82 (9th Cir.

2002). 

This contention fails. The application notes to the Guidelines are exactly that—notes about when a particular Guideline applies and when it does not. Note 4 so reads: It explains

that subsection (b)(2)(A) “does not apply” to transparently

counterfeit currency, the equivalent of stating that the subsection applies only to notes that could be taken as real. As the

defendant bears no burden to establish that circumstances

exist in which subsection (b)(2)(A) does apply, he bears no

burden to demonstrate that the counterfeiting devices and

materials he possessed produced or could produce realistic

counterfeits. 

5

In United States v. Lewis, 979 F.2d 1372, 1375 (9th Cir. 1992), which

distinguished Howard as not pertinent, the question was not the application of burdens of proof to determine a factual question but whether the

court, as opposed to the government, could elicit the pertinent evidence.

6

It is worth noting that if on remand the government independently

presents an affirmative case for the application of this enhancement, it will

most likely breach the plea agreement. 

538 UNITED STATES v. ALLEN
The government argues that even if the district court was

mistaken in applying the subsection (b)(2)(A) enhancement,

the overall sentence was reasonable. When the district court

calculates the Guidelines incorrectly, however, and then

essentially indicates that its decision is controlled by its incorrect calculation, the sentence cannot have been reasonable.

7

See Kimbrew, 406 F.3d at 1154 (remanding where the district

court made a legal error in applying an enhancement). We

therefore remand to the district court so it can apply subsection (b)(2)(A) properly. 

[7] In sum, we hold that Note 4 applies to all of section

2B5.1(b)(2)(A). Where the enhancement is to apply, the judge

must therefore determine whether the quality of the bills for

which the devices or materials were used is sufficiently high

that the bills could plausibly pass as real currency. 

IV. Compliance with the Plea Agreement

Allen maintains that the government breached the plea

agreement by participating in the evidentiary hearing regarding the possession of counterfeiting devices or materials

ordered by the district court. The prosecutor, as noted, found

a witness who could provide information supporting the

enhancement, as requested by the district court and questioned that witness, thereby eliciting information that provided the basis for a greater sentence than the one upon which

the prosecutor and Allen had previously agreed. Allen argues

that by doing so, the prosecutor went beyond her duty of candor to the court and so undermined its promise in the plea

agreement to recommend an offense level of nine as to breach

the plea agreement. We reject this proposition, with the cau7While the district court did indicate that it was not bound by the Guidelines, it went out of its way to emphasize their provenance and to compliment those who had devised them. It also indicated that they were “better,

more scientific, [and] fairer” than individualized judicial sentencing. It

then sentenced Allen to the precise term suggested by the Guidelines. 

UNITED STATES v. ALLEN 539
tion that our decision is premised on the distinct facts of this

case, not on any broad sanction of the procedure used here.

[8] A plea agreement is a contract and is enforced as such.

See United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.

2000); United States v. Johnson, 187 F.3d 1129, 1134 (9th

Cir. 1999). Because the defendant in a plea agreement relinquishes his constitutional right to a trial, INS v. St. Cyr, 533

U.S. 289, 321-22 (2001), “[t]he integrity of our judicial system requires that the government strictly comply with its obligations under a plea agreement,” Mondragon, 228 F.3d at

981. 

Allen agreed to plead guilty to the superseding indictment.

In exchange, the government agreed to recommend, jointly

with Allen, the offense level of nine with a sentence in the

middle range.8

Allen does not argue, as he cannot, that the government

should not have answered the district court’s questions.9“[A]

plea agreement does not bar the government from honestly

answering the district court’s questions. To the contrary, honest response of the government to direct judicial inquiry is a

prosecutor’s professional obligation that cannot be barred,

eroded or impaired by a plea agreement.” United States v.

Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000). On the

other hand, an “attempt by the government to influence the

8The plea agreement first stated, “The parties will jointly recommend

the following Base Offense Level, Specific Offense Characteristics,

Adjustments and Departures (if applicable) under the Guidelines.” The

resulting calculation was “Total Offense Level 9.” The plea agreement

then stated, “The Parties will jointly recommend that defendant be sentenced to the middle of the guideline range found by the Court.” 

9The prosecutor’s answer to those questions was erroneous. She

answered that the trash pull at Allen’s house turned up a shop press, when

it actually only discovered the packaging for a press and materials usable

for counterfeiting. That distinction, however, lacks significance for the

issue before us. 

540 UNITED STATES v. ALLEN
district court” to impose a harsher sentence than the one to

which the government agreed in the plea agreement to recommend would violate the agreement. Mondragon, 228 F.3d at

980-81. 

The government’s actions in this case were not an attempt

to persuade the district court to impose a higher sentence. The

prosecutor reiterated the government’s support for a total

offense level of nine and indicated that she was responding to

the district court’s requests only because the court had so

requested. The plea agreement contained no provision forbidding the prosecutor to respond to requests by the district court

or to present evidence when specifically requested to do so.

Nor is there any suggestion at all in this record that the prosecutor was in any way responsible for encouraging the probation officer to include a higher offense level recommendation

than was contained in the plea agreement, or that she induced

the district court to pursue that recommendation. 

Allen argues that the government’s presentation of evidence was more damaging to him than if it had merely

expressed an opinion inconsistent with the plea agreement. He

cites United States v. Boatner, 966 F.2d 1575 (11th Cir.

1992), in support of his position. Boatner, however, held that

when the government volunteers evidence that the plea agreement is inaccurate or incomplete, the government breaches

the plea agreement even if it simultaneously states that it “will

stick to its stipulation” in the plea agreement. See id. at 1579.

In Boatner, the government contradicted the facts in the plea

agreement not in response to questioning by the district court

but rather in response to the defendant’s claim that the facts

in the PSR were incorrect. In this case, however, the government did not argue, unprompted, that Allen manufactured the

counterfeit bill. Instead, the government responded to the district court’s specific requests. 

[9] Although this court has not addressed this precise factual scenario, helpful guidance is available from the District

UNITED STATES v. ALLEN 541
of Columbia Circuit. In United States v. Ahn, 231 F.3d 26

(D.C. Cir. 2000), the court found no breach of the plea agreement where the prosecutor presented and questioned a witness

upon the district court’s request. In Ahn as in this case, the

questioning of the witness provided only the factual material

for the district court to apply an enhancement. See id. at 38.

Ahn concluded that because “[t]he court undoubtedly understood the nature and purpose of this questioning,” there had

been no breach. Id.; see also United States v. Hand, 913 F.2d

854, 856-57 (10th Cir. 1990) (holding that prosecutor’s crossexamination of the defendant and a witness about defendant’s

involvement in the crime did not breach a promise in the plea

agreement to recommend reduction based on minor role). 

[10] Here, the questioning was neutral and brief, eliciting

only the bare facts of what Agent Graf found in his trash pull.

The district court, aware of the prosecutor’s dilemma, noted

that it “tried to take over some of the questioning there to take

the onus off [the prosecutor] so it’s not looking like she’s

pushing me to do anything rather than find that Mr. Allen is

a lower guideline range.” The district court thus asked the

questions that clarified the investigation revealed scissors;

explained the meaning of “shop press”; and detailed the significance of the items found. The prosecutor did not question

the agent on redirect. 

A prosecutor certainly could breach a plea agreement by

questioning a witness in support of a sentence higher than the

one it promised to support, even if such questioning is in

response to a request by the district court. Because the line

between neutral questioning and impermissible advocacy is

thin, district courts should ordinarily conduct the questioning

themselves where they feel it necessary to receive testimony

in support of a sentence different from the one the prosecutor

has agreed to recommend. 

[11] Here, that preferable procedure was not followed. The

combination of some judicial questioning and prosecutorial

542 UNITED STATES v. ALLEN
care to present the testimony neutrally avoided, however, a

breach of the plea agreement. We therefore affirm the district

court’s holding that the plea agreement was not breached.

V. Conclusion

[12] We reverse and remand for factfinding consistent with

Application Note 4. We affirm the district court’s decision

that there was no breach of the plea agreement. 

REVERSED in part and AFFIRMED in part. 

UNITED STATES v. ALLEN 543