United States Court of Appeals

For the Eighth Circuit 

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No. 22-2742

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United States of America

 Plaintiff - Appellee

v.

Corey Lynn Flying Bye, Jr.

 Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Northern

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Submitted: March 16, 2023

Filed: June 2, 2023

[Unpublished]

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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges. 

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PER CURIAM. 

Corey Lynn Flying Bye, Jr. pled guilty to one count of conspiracy to distribute 

a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), 

pursuant to a plea agreement. Among other benefits, the agreement contained the 

government’s promise that “there w[ould] be no further federal criminal 

prosecution” for distribution or possession with intent to distribute a controlled 
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substance. At sentencing, per the district court’s1 request, the government elicited 

testimony from a witness connecting Flying Bye to a drug-related death during the 

time he was involved in the conspiracy. Flying Bye objected, arguing that this

testimony violated the plea agreement. The district court overruled his objection and 

sentenced Flying Bye to 125 months’ imprisonment. Flying Bye appeals, arguing 

only that the government breached the plea agreement. Having jurisdiction under 

28 U.S.C. § 1291, we affirm. 

I. 

In early January 2021, federal law enforcement officers received information 

that Flying Bye was distributing methamphetamine on the Standing Rock Indian 

Reservation and was a person of interest in the drug-related death of Justin Yellow 

Earrings. On January 7, 2021, officers arrested and questioned Flying Bye. He 

admitted to distributing methamphetamine. On the same day, officers also 

interviewed S.U.A., who informed them that, prior to his death, Yellow Earrings had 

told her that he bought methamphetamine from Flying Bye. 

Subsequently, a federal grand jury returned an indictment charging Flying 

Bye with conspiracy to distribute a controlled substance. Following negotiations, 

Flying Bye entered into a plea agreement with the government whereby he agreed 

to plead guilty to the indictment in exchange for, among other benefits, the 

government’s promise that “there w[ould] be no further federal criminal 

prosecution” for distribution or possession with intent to distribute a controlled 

substance “between January 1, 2020, and January 7, 2021.” The parties also “agreed 

that no additional promises, agreements, or conditions have been entered into other 

than those set forth in this agreement, and this agreement supersedes any earlier or 

other understanding or agreement.”

1

The Honorable Charles B. Kornmann, United States District Judge for the 

District of South Dakota.
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Months later, the United States Probation Office released the first draft of its 

Presentence Investigation Report (PSR) which discussed Flying Bye as a person of 

interest in Yellow Earrings’s drug-related death. The parties’ attorneys met to 

discuss the PSR, and the government stated that it would not seek to link Flying Bye 

to the death. Shortly thereafter, Flying Bye filed a formal objection to the paragraphs 

of the draft PSR discussing his possible involvement in the death. The Probation 

Office then distributed the final PSR, acknowledging Flying Bye’s objections but 

maintaining the PSR as written.

Just days later, the district court issued a memorandum to the parties stating: 

I am very disturbed by the fact that [Flying Bye] is a person of 

interest in a drug distribution death. His lawyer has objected (although 

there is apparently no question that he is a “person of interest[,]” apart 

from the question of whether he is guilty of something). I want to hear 

from a witness, namely [S.U.A.], as to what she knows about the 

distribution and death. I will expect the government to make her 

available.

 

R. Doc. 31. This memorandum “caused a flurry of activity” among the parties, and 

the government ultimately decided to abide by the district court’s request. 

At Flying Bye’s sentencing hearing, the government called S.U.A. as a 

witness. Flying Bye objected, arguing that the government eliciting testimony from 

S.U.A. violated the plea agreement. The district court overruled his objection, and 

the government proceeded. In argument following S.U.A.’s testimony, the 

government stated to the district court, “I do not think I could have proved beyond a 

reasonable doubt that the meth that Mr. Flying Bye had was what caused the death 

of Mr. Yellow Earrings. . . . [T]hat is why it wasn’t charged.”

Ultimately, the district court did not take Yellow Earrings’s death into account 

in fashioning Flying Bye’s sentence. Following an extensive analysis, the district 

court imposed a final sentence of 125 months’ imprisonment. Flying Bye now 

appeals, arguing that “the government breached the plea agreement by eliciting 
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testimony from [S.U.A.] at sentencing regarding the drug-related death mentioned 

in the PSR when the government had previously agreed that it would not seek to link 

Mr. Flying Bye to the death.” Appellant Br. 7.

II. 

“When a guilty plea is induced by an agreement, the government must abide 

by its terms.” United States v. Beston, 43 F.4th 867, 873 (8th Cir. 2022) (citation 

omitted). And “[w]e review de novo questions regarding the interpretation and 

enforcement of a plea agreement.” United States v. Collins, 25 F.4th 1097, 1100 

(8th Cir. 2022). “‘We generally interpret the meaning of the terms in the agreement 

according to basic principles of contract law.’ This involves ‘discern[ing] the intent 

of the parties as expressed in the plain language of the agreement when viewed as a 

whole.’” United States v. Thomas, 58 F.4th 964, 971 (8th Cir. 2023) (alteration in 

original) (citations omitted). We take a “holistic view of the [g]overnment’s plearelated conduct,” mindful of the constitutional concerns implicated by plea 

agreements. Beston, 43 F.4th at 874 (alteration in original). While many errors 

which are alleged to have occurred at sentencing are reviewed for harmless error, 

see, e.g., United States v. Marin, 31 F.4th 1049, 1056-57 (8th Cir. 2022), such review 

is unavailable when the government breaches a plea agreement, United States v. 

Yah, 500 F.3d 698, 704 (8th Cir. 2007). 

Here, the government promised that, in exchange for Flying Bye’s guilty plea,

“there w[ould] be no further federal criminal prosecution” for distribution or 

possession with intent to distribute a controlled substance. The government argues 

that this phrase means “that the government would not institute a separate 

prosecution against Flying Bye for the distribution of a controlled substance in 

exchange for his guilty plea to the conspiracy offense.” Appellee Br. 7. Flying Bye, 

on the other hand, reads the provision to mean “that there would be no attempt to 

link [Yellow Earrings’s] death to Mr. Flying Bye.” Appellant Br. 10. We are more 

persuaded by the government’s reading. 
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The term “prosecution” is not expressly defined in the agreement, “so we look 

to its ordinary, natural meaning.” Thomas, 58 F.4th at 971. “Prosecution” means 

“[a] criminal proceeding in which an accused person is tried.” Prosecution, Black’s 

Law Dictionary (11th ed. 2019). When combined with the modifier “further,” the 

agreement unambiguously refers to an additional prosecution beyond the one in 

which Flying Bye agreed to plead guilty. Thus, the government’s eliciting testimony 

from S.U.A. at sentencing—a necessary component of Flying Bye’s prosecution for 

the crime he pled guilty to—did not constitute a “further federal criminal 

prosecution.” Indeed, S.U.A.’s testimony about Yellow Earrings’s death merely 

constituted relevant conduct underlying Flying Bye’s prosecution for conspiracy to 

distribute controlled substances. We also note that, while having no impact on our 

interpretation of the plea agreement, the district court—not the government—was 

the driver of this testimony. Thus, we hold that the government did not breach the 

plea agreement by eliciting S.U.A.’s testimony at sentencing. 

III.

For the foregoing reasons, we affirm the judgment of the district court. 

ERICKSON, Circuit Judge, concurring. 

I agree with the majority’s analysis of the plain language of the “no further 

prosecution” provision in the plea agreement. I write separately to note that defense 

counsel asserted, which the government did not dispute, that this provision was 

added to the plea agreement to avoid the scenario that played out at sentencing—

that is, consideration of whether Flying Bye distributed drugs that resulted in Yellow 

Earrings’s death. I have concerns about whether the prosecutor’s actions in eliciting 

the testimony contravened the parties’ pre-plea agreement bargain to not attempt to 

link Flying Bye to the overdose death. But, because the plea agreement did not 

contain a provision that reduced to writing this particular aspect of the plea 

negotiations, I cannot say under these circumstances that the government failed to 

fulfill the court’s expectation that prosecutors act with “meticulous fidelity to the 
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plea agreement” that was signed in this case. See United States v. Brown, 5 F.4th 

913, 916 (8th Cir. 2021) (endorsing the presentence investigation report’s higher 

than the parties’ agreed to calculation, which essentially invited the district court to 

go on a fishing expedition for additional supporting facts, “was hardly the 

meticulous fidelity to the plea agreement we require”); United States v. E.V., 500 

F.3d 747, 751 (8th Cir. 2007) (explaining the government’s breach of a promise that 

induced a guilty plea violates due process and threatens “the honor of the 

government, public confidence in the fair administration of justice, and the effective 

administration of justice in a federal scheme of government”). 

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