United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50872

____________

United States of America, 

Plaintiff—Appellee, 

versus

Shawn Malmquist, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:21-CR-48-12 

______________________________

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Stephen A. Higginson, Circuit Judge: 

Shawn Malmquist appeals from a guilty-plea conviction and sentence 

of 151 months of imprisonment and four years of supervised release for 

conspiracy to possess with intent to distribute 50 grams or more of 

methamphetamine. On appeal, Malmquist contends that the Government 

breached the clause of the plea agreement in which the Government

promised to recommend a three-level acceptance-of-responsibility 

reduction. Malmquist argues that the Government’s opposition to the 

reduction at sentencing constituted plain error because there is a reasonable 

probability that, but for the breach, he would have received a lesser sentence, 

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2024

Lyle W. Cayce

Clerk

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and the Government’s improper extraction of benefits from the agreement 

resulted in a miscarriage of justice.

We conclude that the Government’s breach of the plea agreement 

constituted plain error because the breach affected Malmquist’s substantial 

rights and called into question the fairness, integrity, and public reputation of 

the judicial proceedings. Therefore, we VACATE Malmquist’s sentence 

and REMAND for resentencing.

I.

In July 2022, Malmquist pleaded guilty, pursuant to a plea agreement, 

to one count of conspiracy to possess with intent to distribute 50 grams or 

more of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B). 

According to the presentence investigation report (“PSR”), Malmquist was 

part of an Austin, Texas-based methamphetamine-trafficking organization. 

He was one of 33 participants charged in this conspiracy and was identified 

as being a drug distributor. 

In April 2021, an initial hearing was held to address the Government’s 

application for pretrial detention. The magistrate judge denied the 

Government’s request in part and pronounced that Malmquist would be 

detained only until there was availability in an inpatient residential drug 

treatment program. In May 2021, Malmquist was released on bond following 

a detention hearing and scheduled to enter an inpatient residential drug 

treatment program within approximately one week, subject to mandated 

conditions of pretrial release. Malmquist successfully completed that 

residential program in July 2021. 

On March 31, 2022, however, a pretrial-services officer filed a petition 

to modify the conditions of pretrial release following Malmquist’s 

submission of two positive drug tests. When confronted with these results, 

Malmquist eventually admitted to using methamphetamine prior to these 

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drug tests. In the petition, the officer also recounted Malmquist’s successful 

completion of the residential drug treatment program, the reduction in 

mandated counseling sessions per month due to his progress, and 

Malmquist’s active participation in the treatment sessions. Although, as 

noted, such violations could have resulted in the revocation of his pretrial 

release, the officer recommended that Malmquist increase the number of 

individual counseling sessions and random drug tests. The magistrate judge 

and Government concurred with these modifications. 

Approximately six weeks later, on May 10, 2022, Malmquist was 

arrested after being found in possession of methamphetamine following a 

traffic stop during his mandated curfew. He was detained in a local jail in 

Williamson County. The pretrial-services officer filed a petition for an arrest 

warrant and the revocation of Malmquist’s pretrial release the following day, 

and the warrant was issued thereafter. Malmquist remained in Williamson 

County custody until he was transferred to federal custody pursuant to a writ 

on July 5, 2022. 

On July 1, 2022—after Malmquist’s arrest for possession of 

methamphetamine and while he was still in custody in Williamson County—

Malmquist and the Government entered into a written plea agreement. As 

part of this agreement, the Government guaranteed—as relevant here—that

it would “recommend that [Malmquist] receive a three level downward 

adjustment for acceptance of responsibility.” In the agreement, Malmquist 

waived his right to appeal and to collaterally challenge his conviction and 

sentence. Also in the agreement, Malmquist further confirmed that he 

understood that his breach of the terms of the plea agreement would release 

the Government from its obligations. 

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On July 6, 2022, the magistrate judge revoked Malmquist’s pretrial 

release and ordered that he be detained pending further proceedings. The 

Government did not appear at this proceeding. 

Later that afternoon, Malmquist pleaded guilty, pursuant to his 

written plea agreement, to the underlying offense before the magistrate 

judge. As recommended by the magistrate judge, the district court accepted 

the guilty plea. 

The PSR assessed a total offense level of 30, and a criminal history 

category of VI. The probation officer determined that an acceptance-ofresponsibility reduction under U.S. Sentencing Guidelines § 3E1.1 was not

applicable due to Malmquist’s “noncompliance issues” and bond 

revocation. The advisory guidelines range was 168 to 210 months of 

imprisonment, with a statutory minimum of five years of imprisonment. 

In the “Offender Characteristics” section, the probation officer 

stated that Malmquist’s “methamphetamine dependency has proven to be a 

common issue during his adult life, as the frequency of his methamphetamine 

consumption correlates to his involvement with serious criminal conduct.” 

The officer added, as was consistent with the pretrial-services officer’s 

petition to modify pretrial release conditions, that “[p]rior to [the] 

noncompliance issues [while on pretrial release], [Malmquist] was making 

significant progress towards his treatment goals, as he remained sober and 

continued with counseling.” 

Defense counsel filed objections to the PSR and argued, inter alia, that 

a three-level § 3E1.1 acceptance-of-responsibility reduction was applicable 

because Malmquist “plead[ed] guilty promptly and . . . never denied guilt of 

the charged offense.” In response, the probation officer contended that a 

reduction was not applicable due to Malmquist’s behavior “while on pretrial 

release and prior to his guilty plea,” specifically the positive drug tests and 

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possession of methamphetamine. The Government did not object to the PSR 

or submit a response to Malmquist’s objections. 

At sentencing, defense counsel’s argument as to the § 3E1.1 reduction 

was that he “believe[d] that [Malmquist] did accept responsibility.” At this 

point, the Government countered:

As to the objection as to whether or not the acceptance 

of responsibility points should be awarded, again, the pretrial 

services officer got this right, Your Honor. . . . Mr. Malmquist 

and his family told [the magistrate judge] he [could] be good. 

He [could] behave himself while he’s out on pretrial release. 

We’ll put him in a program. We’ll make sure that he does what 

he’s supposed to do. Mr. Malmquist told [the magistrate 

judge] that he could abide by the conditions that she set for 

him. Put him into a program. And, as you can see from the 

presentence report, he failed out of that program. Twice he 

tested positive for methamphetamine. 

More importantly, the court gave him one more chance 

and said, You know what? I’m going to let you stay out as long 

as you agree that you won’t violate the law any longer. What 

did Mr. Malmquist do? Went out and scored more 

methamphetamine. This time it was 50 grams. Again, that’s a 

distribution amount, Your Honor.

Mr. Malmquist has not learned a single lesson in the 

time that he was first arrested in April of 2021 until he was reincarcerated. If he had stayed in jail, we wouldn’t be talking 

about the acceptance of responsibility points. Instead, Mr. 

Malmquist made that decision and the pretrial services officer 

got this correct.

Defense counsel responded that the acceptance-of-responsibility reduction 

was applicable because Malmquist admitted his guilt and “[i]f there[ was] 

any delay, that ha[d] to do with discovery review and the volume of calls in 

this case.” 

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The district court overruled defense counsel’s objections and 

announced its decision:

Defendants usually get acceptance of responsibility. 

And I think [the Government] is correct when [it] says that if 

this defendant had remained in jail, we wouldn’t be talking 

about the three points for acceptance of responsibility right 

now. But we are because this defendant appeared in front of a 

magistrate judge and a magistrate judge conducted a hearing. 

It was represented to the magistrate judge that the defendant 

understood the situation, he was released on bond, knowing 

what would happen if he reverted to the use of drugs.

I’m highly sympathetic to his situation and I do believe 

that he should get drug treatment, but I find he is not entitled 

to acceptance of responsibility, because after those 

representations, he went back to at least the use of drugs, and 

perhaps due to the quantities, might have distributed some or 

might not. I do not make a finding that he did, but he violated 

the representations to the court with regard to use and 

proximity of drugs and he is not entitled to the acceptance of 

responsibility.

Defense counsel made no further objection. 

The parties then made their final arguments. Defense counsel 

requested a sentence of “less than 100 months,” which he calculated to be 

the “average” of the sentences imposed for the codefendants to date. The 

Government stated that a sentence “at the low end of the guideline range 

[was] appropriate.” 

After several of Malmquist’s family members made statements of 

support, the district court adopted the PSR, and pronounced its sentencing 

determination. It acknowledged that it had reviewed the plea agreement, 

considered the underlying facts, listened to Malmquist’s letter of apology and 

family members, and reviewed Malmquist’s personal background. The court 

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confirmed that it was “willing to accept the fact that [Malmquist’s 

involvement in the drug-trafficking organization] was due to [his] drug 

addiction,” because it thought that he had “an extreme drug addiction,” but 

his addiction “in no way lessen[ed]” his role in the offense because many of 

the codefendants had drug addictions as well. Further, the court stated that 

it would impose a sentence that was “more accurate with regard to other 

[defendants] that [it had] sentenced in this case in an attempt to balance 

everybody out.” 

During its explanation, the district court discussed the acceptance-ofresponsibility reduction on several occasions. It stated that when Malmquist 

was “given a chance where [he] could have gotten some time down under the 

guidelines for acceptance of responsibility, [he] violated that.” The court 

then pronounced:

[The court] find[s] that the difference between what guidelines 

would have come up with had you satisfied your pretrial release 

and gotten credit for acceptance of responsibility and the 

guidelines that [the court is] applying today is more harsh [sic] 

than it needs to be. It was too great a penalty there.

The court elaborated that it would impose a sentence “somewhat below the 

guideline range” which was “more of an appropriate penalty because of 

[Malmquist’s] violation of [the] terms of pretrial release.” 

Having considered the 18 U.S.C. § 3553(a) sentencing factors, the

district court imposed a below-guidelines sentence of 151 months of 

imprisonment and four years of supervised release. Again, addressing the 

acceptance-of-responsibility reduction, the court clarified that it would not 

give Malmquist credit for the time he spent in custody in Williamson County

“because of [the] court’s policy,” and that this was “yet another penalty 

[Malmquist was] suffering because [he] couldn’t make good on” the pretrial 

release conditions. There were no further objections. 

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Malmquist timely filed a pro se notice of appeal on the grounds of (1) 

prosecutorial misconduct resulting from the Government’s breach of the

plea agreement “openly in court,” and (2) ineffective assistance resulting 

from defense counsel’s failure to object to the breach. See Fed. R. App. P.

4(b)(1)(A).

II.

We have jurisdiction over Malmquist’s appeal under 18 U.S.C. § 3742 

and 28 U.S.C. § 1291. As a preliminary matter, an appellate waiver provision 

does not bar a plea-agreement-breach claim because the Government’s 

breach “void[s] the plea agreement (including the defendant’s waiver of 

appeal).” United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002); see 

United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017) (considering the 

defendant’s argument, despite the appeal waiver, that the Government 

breached the plea agreement by not recommending an acceptance-ofresponsibility adjustment); United States v. Gonzalez, 309 F.3d 882, 886 (5th 

Cir. 2002) (“[W]here the government has breached . . . a plea agreement, the 

defendant is necessarily released from an appeal waiver provision contained 

therein.”). 

Generally, a claim that the Government breached a plea agreement is 

reviewed de novo. Cluff, 857 F.3d at 297. However, Malmquist failed to

preserve his prosecutorial-misconduct-and-Government-breach objection in 

the district court, so we review his breach claim for plain error. See Puckett v. 

United States, 556 U.S. 129, 133-34, 138 (2009); United States v. Williams, 821 

F.3d 656, 657 (5th Cir. 2016). To succeed on plain-error review, a defendant 

must demonstrate that (1) there is an error “that has not been intentionally 

relinquished or abandoned”; (2) “the legal error must be clear or obvious, 

rather than subject to reasonable dispute”; and (3) “the error must have 

affected [his] substantial rights.” Williams, 821 F.3d at 657 (internal 

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quotation marks and citation omitted). Even if the defendant makes this 

showing, we have discretion to correct the error “only if the error seriously 

affects the fairness, integrity or public reputation of judicial proceedings.” 

Id. (internal quotation marks, brackets, and citation omitted).

III.

Malmquist argues that the Government breached the plea agreement 

by advocating for the denial of the three-level acceptance-of-responsibility 

reduction despite having explicitly guaranteed that it would recommend such 

a reduction in the plea agreement. Although it failed to do so in its brief, the 

Government acknowledged at oral argument that it committed clear error by 

breaching the plea agreement. See Oral Argument at 13:47-53; Keresztury, 

293 F.3d at 756; United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005); 

United States v. Kirkland, 851 F.3d 499, 503 (5th Cir. 2017).

IV.

Because the Government breached Malmquist’s plea agreement, 

“[t]he first two plain-error factors are clearly met,” and therefore the crux of 

this appeal concerns the third and fourth factors. Williams, 821 F.3d at 658. 

On appeal, Malmquist argues that the breach “affected [his] substantial 

rights because there is a reasonable probability that, but for the breach, he 

would have received a lesser sentence through a three-level downward 

adjustment.” Malmquist further asserts that the Government’s breach 

affected the fairness, integrity, and public reputation of the judicial 

proceedings because he “surrender[ed] . . . numerous [c]onstitutional 

rights” in exchange for the Government’s promise and the Government 

“extract[ed] benefits” having already known about Malmquist’s postindictment violative acts. 

The Government counters that Malmquist cannot demonstrate that it 

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responsibility reduction regardless of any breach.” Further, it asserts that 

“[g]iven the court’s decision to sentence [him] outside the guideline range, 

Malmquist has not shown it was reasonably likely that the district court 

would have imposed a different sentence even if it had reduced his offense 

level for acceptance of responsibility.” As to the fourth prong, the 

Government argues that because Malmquist “did not cease his life of crime” 

after his indictment, the reputation of the judicial proceedings is not at issue. 

Puckett, 556 U.S. at 143. 

A.

In the sentencing context, “[a]n error affects an appellant’s 

substantial rights when there is a reasonable probability that, but for the error, 

he would have received a lesser sentence.” Williams, 821 F.3d at 657-58 

(internal quotation marks and citation omitted). Specifically, “[t]he 

Government’s breach of its promise to recommend a lesser sentence affects 

a defendant’s substantial rights unless the record indicates that . . . the 

district court would have imposed the same sentence regardless of the 

Government’s breach.” Kirkland, 851 F.3d at 503. A defendant’s 

substantial rights are affected when “[t]here is no indication the district court 

would have been unmoved by the Government’s recommendation.” 

Williams, 821 F.3d at 658. This standard reflects both the “reasonable 

probability” showing required of the defendant and “the common sense 

understanding of the important role the Government’s recommendation 

plays in sentencing.” Kirkland, 851 F.3d at 503.

There is an additional inquiry where, as here, the Government “did 

not merely remain silent,” but rather “aggressively argued” for the opposite 

of what was promised in the plea agreement. Id. at 504. Under those 

circumstances, we “must consider not only the possibility that the district 

court would have been influenced” had the Government made the promised 

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recommendation, “but also the possibility that the district court was

influenced by the Government’s recommendation of, and argument for,” the 

opposite of what was promised. Id. (emphasis omitted). If the record 

indicates that “the district court may have been influenced not only by the 

Government’s recommendation, but also by [the] Government’s passionate 

emphasis of aggravating factors in support of that recommendation,” it 

cannot be said that the sentence would have been the same absent the breach. 

Id. at 504-05.

The Government contends that it did not “aggressively argue[]” 

against the acceptance-of-responsibility reduction, id. at 504, but merely 

“endors[ed] the recommendation of court staff.” However, the 

Government actively opposed the reduction and made several misstatements

at sentencing. Malmquist did not “fail[] out of [the] program” as the 

Government alleged, but rather successfully completed the court-ordered 

residential drug treatment program in July 2021 and then made progress in 

the outpatient services such that he was rewarded in February 2022 with a 

decrease in the frequency of the mandated counseling sessions. The 

Government’s assertion that Malmquist had “not learned a single lesson” 

since he was first arrested discounted these successes. When Malmquist first 

violated the terms of his pretrial release, it was not only the magistrate judge 

who gave him “one more chance,” as the Government claimed. Rather, the 

pretrial-services officer was the one who made that suggestion and the 

Government concurred. The Government concluded at the sentencing 

hearing by stating that the parties “wouldn’t be talking about the acceptance 

of responsibility points” had Malmquist “stayed in jail” and not made the 

decision to violate his pretrial release terms, when in fact the Government 

had agreed to recommend “a three level downward adjustment for 

acceptance of responsibility” afterit was already aware of Malmquist’s arrest

for possession of methamphetamine in Williamson County.

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It is reasonably likely that, but for the Government’s breach, the 

district court would have imposed a lesser sentence. See id. at 503-05. First, 

the district court’s expressed hesitancy in denying the reduction 

demonstrates that there is a “possibility that the district court would have 

been influenced” by the Government’s recommendation for an acceptanceof-responsibility reduction and, further, that there is a “possibility that the 

district court was influenced” by the Government’s “passionate emphasis of 

aggravating factors” in its advocacy to deny the reduction. Id. at 504-05 

(emphasis omitted). When announcing its decision concerning the § 3E1.1 

reduction, the court began by stating that “[d]efendants usually get 

acceptance of responsibility” but that the Government was “correct” that 

the reduction would not even be a discussion during this proceeding had 

Malmquist “remained in jail.” That determination rested on a 

misrepresentation by the Government. 

Next, when addressing Malmquist’s criminal history, the court 

acknowledged that “he could have gotten some time down under the 

guidelines” had Malmquist not “violated” the “chance” he was given. 

Again, this statement may have been colored by the Government’s advocacy 

against the acceptance-of-responsibility reduction and its inaccurate 

characterization of Malmquist’s conduct on pretrial release. The court then 

declared that the resulting guidelines range, as it had been calculated without 

the credit for acceptance of responsibility, was “harsh[er] than it need[ed] to 

be” and “too great a penalty.” Accordingly, the court imposed a belowguidelines sentence, in part, to give a “more appropriate penalty” despite

Malmquist’s violation of his pretrial release. The district court’s explanation 

here undermines the Government’s argument that the outcome, regardless 

of the breach, was inevitable. 

Moreover, the court’s emphasis on Malmquist’s drug addiction 

further suggests that the Government’s support for the reduction may have 

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been influential. The Government’s post-violation promise to recommend 

the reduction may have indicated to the district court that weight should be 

given to Malmquist’s history of successes with substance-abuse treatment, 

which showed his initial progress toward “withdraw[ing] from criminal 

conduct.” U.S. Sent’g Guidelines Manual § 3E1.1 cmt. n.1(B) 

(U.S. Sent’g Comm’n 2023) [hereinafter “U.S.S.G.”]. 

It is true, as the Government urges, that Malmquist engaged in postindictment conduct to warrant the denial of an acceptance-of-responsibility 

reduction based on a finding that he had not “withdr[awn] from criminal 

conduct after being charged in the pending offense.” United States v. Franks, 

46 F.3d 402, 406 (5th Cir. 1995) (per curiam) (citing U.S.S.G. § 3E1.1 cmt. 

n.1(B)) (affirming the denial of an offense-level reduction where the 

defendant’s possession of ammunition and drugs while on bond pending the

disposition of his case indicated continued involvement in criminal conduct); 

see United States v. Puckett, 505 F.3d 377, 387 (5th Cir. 2007), aff’d in part, 

556 U.S. 129 (2009). The Government asserts that because of this conduct, 

Malmquist would not have obtained the § 3E1.1 reduction regardless of the 

Government’s breach. 

The Government relies on the Supreme Court’s decision in Puckett

and this court’s decision in United States v. Hinojosa, 749 F.3d 407 (5th Cir. 

2014), cases in which the denials of the acceptance-of-responsibility 

reduction were affirmed because the courts found that the circumstances 

demonstrated it was “likely [that the defendant] would not have obtained 

[the] benefits [of the plea agreement] in any event,” regardless of any breach. 

Hinojosa, 749 F.3d at 414 (quoting Puckett, 556 U.S. at 142). However, both 

cases are distinguishable. In Puckett, the Government agreed in the plea 

agreement that the defendant qualified for an acceptance-of-responsibility 

reduction and later opposed that reduction because the defendant committed 

another crime after the plea agreement was executed. See 556 U.S. at 131-32. 

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In Hinojosa, as here, the Government was aware of the defendant’s postindictment misconduct when it promised to recommend an acceptance-ofresponsibility reduction. 749 F.3d at 414. However, the Government’s 

promise in Hinojosa “was conditioned on [the defendant] ‘clearly 

demonstrat[ing] his acceptance of responsibility,’” id., but here, the 

Government’s promise to recommend the reduction was unconditional, see

And in Hinojosa, this court did not ultimately determine whether the 

Government’s conduct constituted a breach of the plea agreement, id. at 414, 

whereas here, the breach is undisputed. 

Moreover, in neither case did the district court express sympathy for 

the defendant’s underlying issues that led to the criminal conduct, nor state 

that the denial of the reduction was particularly harsh, as occurred here. To 

the contrary, in Puckett and Hinojosa, the district court denied the reduction 

without hesitation and with solely negative comments. See Puckett, 556 U.S. 

at 132 (quoting the district court’s observation that “it’s so rare as to be 

unknown around here where one has committed a crime subsequent to the 

crime for which they appear before the court and for them even then to get 

the three points” (alterations omitted)); Hinojosa, 749 F.3d at 414 (noting 

that the district court found the defendant’s “credibility so lacking that it was 

‘suspicious of any word out of his mouth’”). 

Finally, the Government asserts that “Malmquist has not shown it 

was reasonably likely that the district court would have imposed a different 

sentence even if it had reduced his offense level for acceptance of 

responsibility.” But the district court’s comments at sentencing cut against 

this argument. The 151-month sentence was 17 months less than the bottom

of the advisory guidelines range of 168 to 210 months of imprisonment. Had 

the three-level reduction been applied, the resulting advisory guidelines 

range would have been 130 to 162 months of imprisonment. See U.S.S.G. 

ch.5, pt. A(sentencing table). Under that range, 151 months would have been 

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21 months above the bottom of the range and closer to the high end of the 

range. Thus, because “[t]here is no indication the district court would have 

been unmoved by the Government’s recommendation,” Williams, 821 F.3d 

at 658, there is a reasonable probability that the courtwould not have imposed 

the same sentence had the Government fulfilled its promise by affirmatively 

advocating for the acceptance-of-responsibility reduction.

B.

The fourth prong of the plain-error analysis is determined “on a casespecific and fact-intensive basis.” Kirkland, 851 F.3d at 505 (quoting Puckett, 

556 U.S. at 142). However, there is a “rebuttable presumption that the 

Government’s meaningful breach of a plea agreement satisfies [this] prong.” 

Id.; see Williams, 821 F.3d at 658; Munoz, 408 F.3d at 226. A breach 

“constitutes a particularly egregious error” and there is an “inherent 

unfairness involved in the Government’s inducement of the defendant’s 

waiver of important constitutional rights by making promises that it 

ultimately does not keep.” Kirkland, 851 F.3d at 505-06. As of 2022, the 

Government resolved approximately 98% of federal convictions by securing 

guilty-plea confessions. See Mark Motivans, U.S. Dep’t Just., 

Off. Just. Programs, Federal Justice Statistics, 2022, at 11

(2024), https://bjs.ojp.gov/document/fjs22.pdf [https://perma.cc/WDH3-

ZQAH] (dividing the percentage of guilty-plea convictions by the total 

percentage of convictions). Put otherwise, plea bargaining, necessarily 

outside of judicial purview, see Fed. R. Crim. P. 11(c)(1), is our criminal 

justice system. It is therefore imperative that the Government honor its 

word. 

Nevertheless, the Supreme Court has held that the Government can 

rebut the miscarriage presumption where a defendant “obviously [does] not 

cease his life of crime” and where “receipt of a sentencing reduction for 

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acceptance of responsibility would [be] so ludicrous as itself to compromise 

the public reputation of judicial proceedings.” Puckett, 556 U.S. at 143

(emphasis omitted). 

Here, the government has failed to rebut the presumption that its 

breach affected the fairness, integrity, and public reputation of the judicial 

proceedings. Again, unlike in Puckett, the Government was aware of 

Malmquist’s violation before it signed the plea agreement. See Kirkland, 851 

F.3d at 506 (“The Government cannot extract benefits from a defendant who 

it knows has committed bad acts and later argue that it should not be held to 

its bargain because the defendant has committed those bad acts.”); cf.

Puckett, 556 U.S. at 132 (recounting that the Government had agreed to 

support an acceptance-of-responsibility reduction “‘a long time ago,’ before 

[the defendant] had engaged in the additional criminal behavior” (citation 

omitted)). Additionally, unlike the defendant in Puckett, who exhibited no 

behavior suggesting any “withdrawal from criminal conduct” prior to 

sentencing, U.S.S.G. § 3E1.1 cmt. n.1(B), Malmquist had a history of 

successes with substance-abuse treatment, which the Government 

discounted in its sentencing advocacy against the acceptance-ofresponsibility reduction. For these reasons, the Government has not 

rebutted the presumption that its breach constituted a “miscarriage of 

justice,” Kirkland, 851 F.3d at 505, and Malmquist has therefore satisfied the 

fourth prong. 

V.

Because the Government’s breach of the plea agreement constituted 

plain error, we VACATE Malmquist’s sentence and REMAND for 

resentencing. 

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