# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 18-1212

___________________________ United States of America
lllllllllllllllllllll Plaintiff - Appellee

v. Edward Lee Raifsnider, also known as Larry E. Killion
lllllllllllllllllllllDefendant - Appellant

____________ Appeal from United States District Court for the Western District of Missouri - Southwestern Division

____________ Submitted: December 14, 2018 Filed: February 14, 2019 [Published]

____________ Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

____________ PER CURIAM. Edward L. Raifsnider appeals the se ntence imposed following his successful motion under 28 U.S.C. § 2255 on the ground th at the sentence is substantively unreasonable. The Government asserts Rai fsnider’s appeal is barred by the appeal waiver in his plea agreemen t. We enforce the waiverand accordingly dismiss this appeal.“When reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and thatboth the waiver and plea agreement were entered into knowingly and voluntarily.” United States v. Andis , 333 F.3d 886, 889–90 (8th Cir. 2003) (en banc). We must also determine that enforcing the waiver would not “result in a miscarriage of justice.” Id. at 890.
Raifsnider does not challenge the waiver on any of those grounds, instead arguing that the appeal waiver is unenfor ceable due to the Government’s alleged breach of the plea agr eement at sentencing. 1 This court has held that an appeal waiver is unenforceable when the Governme nt breaches the plea agreement. See United States v. Sayles , 754 F.3d 564, 568 (8th Cir. 2014). When a breach is raised for the first time on appeal, this court revi ews the issue for plain error. Id. If this court finds an error, then it must also assess whether there is a reasonable probability the defendant would have received a more favorable sentence but for the breach. Id.
Raifsnider’s argument is unusual because heasserts a breach of the spirit of the agreement rather than the letter of the agr eement. He concedes that the Government technically recommended a Guidelines sent ence to the sentencing court. Then, he argues the Government effectively recomme nded an alternative sentence by strongly suggesting the district court should not follow its formal recommendation.
Raifsnider cites no authority showing a violation of the spirit of a plea agreement is enough to find a breach. Th e case Raifsnider relies on involved the Government openly advocating upward depa rture from the Guidelines on the tenuous theory that the Government only ag reed to recommend a sentence within its

1 We assume without deciding that Raifsnider did not waive this issue. The Government cites no case where we have re quired a defendant to raise or assert an argument about an appeal waiver before th e Government sought to enforce the appeal waiver, and we need not d ecide whether to impose such a requirement now because it would not affect the outcome in this case. -2-calculation of the Guidelines rather th an the district court’s calculation. United States v. Van Horn , 976 F.2d 1180, 1183 (8th Cir. 1992). Van Horn is distinguishable because there the Government ope nly recommended a departure. See id. Here, Raifsnider concedes that no explicit reque st occurred. We do not suggest the Government can never breach a plea agreement by implicitly recommending a different sentence than the one it is bound to recommend by the agreement, but we do not believe this line has been crossed here.
More importantly, there is also no indication that Raifsnider would have received a more favorable sentence but for the purported breach. The district court based its sentencing decision primarily on reviewing the presentence investigation report and the numerous fraud crimes in Raifs nider’s past. There is no indication that any remarks from the Government were th e but-for cause of the district court’s sentencing decision.
Accordingly, under plain error review, any actionable Government breach here would not relieve Raifsnider of the appeal waiver because he has not shown it is reasonably probable that he would have r eceived a more favorable sentence but for the purported breach. We enforce the waiv er and grant the motion to dismiss this appeal.

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