UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4461

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

CALVIN MARK WILSON, a/k/a Bali,

 Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Greenville. Terrence W. Boyle, District Judge. (4:17-cr-00053-BO-1)

Submitted: November 2, 2020 Decided: January 25, 2021

Before WYNN, HARRIS, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by unpublished opinion. Judge Harris wrote the opinion, in which 

Judge Wynn joined. Judge Quattlebaum wrote an opinion concurring in the judgment.

Anne M. Hayes, Cary, North Carolina, for Appellant. Robert J. Higdon, Jr., United States 

Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Evan M. Rikhye, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PAMELA HARRIS, Circuit Judge:

As part of its plea agreement with Calvin Mark Wilson, the government agreed to 

advocate for a sentence reduction based on acceptance of responsibility. But just before 

sentencing, the government asked the district court to relieve it of that obligation because, 

in its view, Wilson had breached the plea agreement already. When the district court did 

not rule on its motion, the government went ahead on its own and did not argue for the 

downward adjustment at sentencing.

On appeal, Wilson argues that the government breached the plea agreement when it 

failed to argue for an acceptance-of-responsibility reduction. We agree. As we have held, 

the government cannot unilaterally declare itself released from its plea-agreement 

obligations based on a defendant’s alleged breach. Because the government – as it 

concedes – failed to secure a court determination of breach in this case, it remained bound 

by the plea agreement and breached that agreement when it chose not to argue for an 

acceptance-of-responsibility adjustment. Given that breach, we vacate Wilson’s sentence 

and remand for resentencing before a different district court judge, as is standard in such 

cases.

I.

A.

In November 2018, Calvin Mark Wilson signed an agreement in which he pled 

guilty to two offenses related to possession and intent to distribute marijuana and heroin. 

In exchange, the government agreed to dismiss one other count on which Wilson had been 
3

charged, and stipulated to several sentencing “positions.” J.A. 152. Most important here, 

the government agreed that a three-level downward adjustment for acceptance of 

responsibility was warranted under § 3E1.1 of the Sentencing Guidelines.1

 And in another 

key provision, the parties stipulated that the drug quantity attributable to Wilson for 

sentencing purposes would be “[a]t least 3 kilograms but less than 10 kilograms of heroin.” 

J.A. 152. A few weeks after Wilson signed the agreement, the district court accepted his 

guilty plea. 

A probation officer then prepared a preliminary presentence investigation report

(PSR) for Wilson. The PSR held Wilson accountable for approximately 7.48 kilograms of 

heroin, within the parties’ agreed-upon range, putting Wilson’s base offense level at 32. It 

also recommended several sentencing enhancements, including a two-level enhancement 

for obstructing justice – which, the PSR suggested, might make any reduction for 

acceptance of responsibility inappropriate. Without credit for acceptance of responsibility, 

and after accounting for all enhancements, the preliminary PSR identified Wilson’s offense 

level as 43 and his criminal history score as IV, with a resulting guideline sentencing 

recommendation of life imprisonment. 

Wilson filed written objections to the PSR. The only objections relevant here were 

to Paragraphs 19 and 20 of the PSR, which attributed less than .2 kilograms of heroin to 

1 Specifically, the agreement provided that “[a] downward adjustment of 2 levels 

for acceptance of responsibility is warranted under USSG § 3E1.1, unless the offense level 

determined prior to the operation of USSG 3E1.1(a) is level 16 or greater, in which event 

a downward adjustment of 3 levels is warranted.” J.A. 153. As the parties agree, because 

Wilson’s offense level was 43, this stipulation called for a three-level reduction.
4

Wilson based on drug sales dating back to 2015. Wilson did not object to Paragraph 23, 

which deemed him accountable for over seven kilograms of heroin. Nor did he object to 

the summarizing information in Paragraph 64, which held him accountable for a total of 

about 7.48 kilograms of heroin and established his base offense level. 

The day after Wilson’s submission, the government filed a letter stating that it had 

“no objections” to the PSR. J.A. 186. Consistent with the plea agreement, the government 

reiterated that Wilson had accepted responsibility and advised the district court that the 

probation officer, in a final PSR to follow, “intends to include a three-point reduction for 

acceptance of responsibility.” J.A. 186. Shortly after, the probation officer filed a final 

PSR, virtually unchanged but for the inclusion of a three-level sentencing reduction for 

acceptance of responsibility. That reduction brought Wilson’s guideline sentencing range 

down to 360 months to life imprisonment. 

Then, four months after Wilson filed his objections to the PSR and five days before 

Wilson’s sentencing hearing, the government filed a motion for “relief from certain 

obligations under [its] plea agreement.” J.A. 218. In the government’s view, Wilson 

materially breached the plea agreement when he objected to a drug-weight attribution to 

which he already had stipulated. Accordingly, the government asked the district court to 

find, by a preponderance of the evidence, that Wilson was in breach of the agreement, and 

then, based on that finding, to relieve the government of its obligation to advocate for 

acceptance of responsibility. The government clarified, however, that it would withdraw 

its motion if Wilson were to “withdraw his objection to the drug weight.” J.A. 223.
5

B.

Five days later, the district court held Wilson’s sentencing hearing as planned. The 

government addressed its motion, reiterating its position that Wilson breached the plea 

agreement by objecting to drug weights to which he had stipulated. The government again 

explained that the court could relieve it of its obligation to argue for an acceptance-ofresponsibility reduction, if the court first found by a preponderance of the evidence that 

Wilson was in breach of the agreement. J.A. 78 (“If the Court finds by a preponderance of 

the evidence that [Wilson] is in breach of the plea agreement, you can allow us out of our 

obligation . . . .”). And it again made clear that it was prepared to argue for acceptance of 

responsibility – notwithstanding the enhancement for obstruction of justice – if Wilson 

withdrew his objection to the drug-weight calculation. 

In response, Wilson argued that he had not and never intended to object to the drug 

weight to which he had stipulated. J.A. 79 (“[T]he objection is not to the drug quantity. 

He has stipulated to 3 to 10 kilos. We’re not backing off that.”). Instead, Wilson explained, 

his “one objection” was to the “timeline” suggested in Paragraphs 19 and 20 of the PSR, 

which had Wilson’s drug-related activities going “all the way back to 2015” rather than 

starting in 2017. J.A. 79. The quantities in those paragraphs, Wilson pointed out, “might 

add up to 100 grams,” whereas Wilson had not objected to the paragraphs attributing to 

him the approximately 7 kilograms that set his offense level. J.A. 80. 

As the parties agree, the district court never ruled on the government’s motion for 

relief from its plea-agreement obligation or made a finding that Wilson had breached the 

agreement. Appellee’s Br. 4, 20, 21, 28–29; Appellant’s Br. 3, 9, 12. Instead, the district 
6

court suggested that if Wilson had obstructed justice, as per the PSR, then that would 

foreclose any downward adjustment for acceptance of responsibility, regardless. But the 

government clarified that this was not the case: Wilson’s obstructive conduct predated the 

plea agreement in which it had stipulated to acceptance of responsibility, the government 

explained, so if it remained bound by that agreement, it could and would argue that this 

was a case in which both an obstruction enhancement and an acceptance-of-responsibility 

reduction were appropriate. 

When it came time for sentencing, however, the government did not advance that 

argument. Again, this is undisputed: The government never advocated for a downward 

adjustment for acceptance nor argued that the court should find that adjustment compatible 

with the enhancement for obstruction. Without those arguments before it, the district court 

denied Wilson a reduction for acceptance of responsibility, “because of the obstruction of 

justice and the lack of acceptance of any responsibility in this case.” J.A. 126. 

Without the reduction, the court calculated Wilson’s sentencing guideline range as 

life imprisonment, consistent with the original PSR. Before the court imposed a sentence, 

Wilson again objected and asked the court to adjust his sentencing range for acceptance of 

responsibility, pointing out that his obstruction was known to the government at the time 

the parties stipulated to acceptance in the plea agreement. The court declined. The 

government then recommended a sentence of “nothing less than 30 years,” J.A. 130, and 

the district court sentenced Wilson to 35 years’ imprisonment. 

 
7

II.

On appeal, Wilson contends that the government breached its plea agreement by 

failing to argue for a sentence reduction based on acceptance of responsibility. “[A] 

defendant alleging the Government’s breach of a plea agreement bears the burden of 

establishing that breach by a preponderance of the evidence.” United States v. Snow, 234 

F.3d 187, 189 (4th Cir. 2000). Although we use traditional contract-law principles to 

construe a plea agreement, we apply “greater scrutiny” than in the commercial context, 

given the implications for a defendant’s constitutional rights when he is induced to plead 

guilty. United States v. Warner, 820 F.3d 678, 683 (4th Cir. 2016) (citation omitted). 

When a defendant raises on appeal a meritorious and preserved claim of breach, the remedy 

is automatic vacatur of the defendant’s sentence. See Santobello v. New York, 404 U.S. 

257, 262–63 (1971); see also Puckett v. United States, 556 U.S. 129, 141 (2009). 

The parties agree that Wilson preserved for appeal his argument that the government 

breached the plea agreement. The parties also agree that the government did not argue for 

the stipulated acceptance-of-responsibility credit. The upshot, as detailed below, is that 

Wilson has demonstrated a breach of his plea agreement, and we therefore vacate his 

sentence and remand for resentencing.

A.

We begin with preservation. Wilson contends that he preserved his breach argument 

before the district court, and the government expressly agrees. See Appellant’s Br. 14–15; 

Appellee’s Br. 29 (explaining that this appeal involves “a preserved claim of an alleged 

breach of a plea agreement by the government”); see also id. at 21. The parties are correct.
8

Most plainly, at the sentencing hearing before the district court, both parties brought 

the plea agreement to the district court’s attention, with Wilson opposing – at length – the 

government’s motion for relief from its obligation to advocate for acceptance of 

responsibility. According to Wilson, he had not breached the agreement, and the 

government therefore had no excuse for failing to argue for a downward adjustment for 

acceptance of responsibility. That was enough to “alert the district court” of Wilson’s view 

that the government remained obligated to argue for acceptance of responsibility and would 

be in breach if it failed to do so. See CoreTel Va., LLC v. Verizon Va., LLC, 808 F.3d 978, 

988 (4th Cir. 2015) (citation omitted). 

And if more were needed, Wilson also objected when the district court denied a 

reduction for acceptance of responsibility, pointing to the government’s obligations under 

the plea agreement. Wilson emphasized that the plea agreement “specifically 

contemplated” that “acceptance of responsibility would be allowed” and advised the court 

that this promise was a “driving factor for accepting the plea.” J.A. 127–28. Wilson may 

not have used the word “breach,” but the import was plain: The government denied him 

the benefit of his bargain under the plea agreement when it failed to make the case for an 

acceptance-of-responsibility reduction. Wilson’s arguments before the district court, in 

other words, were “specific and in line” with the argument he raises on appeal, and as the 
9

government recognizes, that is enough to preserve it for review. See In re Under Seal, 749 

F.3d 276, 287 (4th Cir. 2014).2

B.

Turning to the merits of Wilson’s argument, we find this appeal straightforward, 

mostly because so much of it is undisputed. The government concedes that under the terms 

of the plea agreement, it was required to advocate for a three-level reduction in Wilson’s 

sentencing range for acceptance of responsibility. It also concedes – as the record requires 

– that it did not do so. It is not disputed, in other words, that if the plea agreement remained 

binding on the government at the time of Wilson’s sentencing, then the government 

breached that agreement.

That brings us to the government’s sole argument on appeal: that it was freed from 

its obligations under the plea agreement because Wilson breached first, by objecting to 

drug attribution quantities to which he had stipulated. But the government cannot decide 

for itself that it is released from its promises due to a defendant’s alleged breach. See 

United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir. 1976) (holding that government 

may not “unilaterally” determine that defendant has breached plea agreement). Rather, the 

government may be relieved of its obligations under a plea agreement only after a hearing 

2 Were there doubt on this score, we would exercise our discretion to excuse any 

waiver by Wilson. We have in the past used our discretion to overlook a defendant’s 

waiver when the government waits until the last minute to raise the issue. See United States 

v. Ashford, 718 F.3d 377, 380 (4th Cir. 2013). Here, of course, the government has not 

simply failed to argue for waiver; it has conceded expressly and repeatedly that Wilson 

properly preserved his argument. Under those circumstances, the “interests of fairness” 

dictate that we take the case as the government has presented it to us. Id. at 381.
10

and a district court finding that the defendant has breached. See id.; see also, e.g., United 

States v. Cudjoe, 534 F.3d 1349, 1354 (10th Cir. 2008) (holding that even if the defendant 

“breached the plea agreement, until the district court so ruled, the government was not 

released from its promise” under the agreement); United States v. Frazier, 213 F.3d 409, 

419 (7th Cir. 2000) (same); United States v. Brown, 99 F.3d 1131 (4th Cir. 1996) (per 

curiam) (unpublished table decision) (“The government is relieved of its obligations under 

a plea agreement if the court which accepted the agreement finds that the defendant has 

failed to carry out his obligations.”). Indeed, we cannot much improve on the government’s 

formulation of this well-established principle in its motion before the district court, stating

that it would seek the court’s permission to be relieved of certain plea-agreement 

obligations if the court found, by a preponderance of the evidence, that Wilson had 

breached the agreement first. 

The problem for the government is that the district court did not make that finding. 

Again, this is not disputed; the government forthrightly concedes that the district court 

never ruled on its motion. And a review of the record confirms that the parties are correct: 

The district court issued no ruling on the government’s motion and made no mention of 

relieving the government of its plea-agreement obligations. The court did, of course, deny 

Wilson an acceptance-of-responsibility reduction, citing Wilson’s obstruction of justice. 

But a denial of acceptance-of-responsibility credit is not tantamount to a finding of breach, 

and the district court’s apparent rationale for the denial – Wilson’s enhancement for 

obstruction of justice – has nothing to do with whether Wilson breached the agreement by 

objecting to certain drug attribution calculations, as the government contended. 
11

That is enough to resolve this appeal. Because the district court did not relieve the 

government of its obligations under the plea agreement, the government remained bound 

to honor its acceptance-of-responsibility stipulation in full, and its conceded failure to do 

so constituted a breach. See United States v. Edgell, 914 F.3d 281, 288 (4th Cir. 2019). 

The government of course is correct, as it argues at length, that it did not breach the plea 

agreement simply by moving in the district court to be excused from its obligations – and, 

to be clear, the defendant has never argued that it did. The problem is not that the 

government sought the district court’s permission to be freed of its plea-agreement 

obligations; the problem is that when that permission was not forthcoming, the government 

went ahead without it, turning what is supposed to be a court finding of defendant breach 

into a unilateral decision by the government that it need not abide by its promises. See 

Simmons, 537 F.2d at 1261.3

3 The government’s defense of its failure to abide by the plea agreement rests 

entirely on Wilson’s alleged breach of that agreement. This is not a case, in other words –

and we do not understand the government to argue otherwise – in which a plea agreement 

allows the government to make its own determination, at sentencing, as to whether a 

defendant has fully accepted responsibility. The plea agreement does provide that conduct 

by the defendant prior to sentencing that “changes the circumstances” relevant to an 

agreed-upon sentencing factor will leave the government “no longer bound” to its 

positions. J.A. 152. But whether the defendant has engaged in such conduct, effectively 

breaching the agreement, is precisely the question reserved for the district court. And when 

it comes to acceptance of responsibility, the agreement’s stipulations commit the 

government unreservedly to the position that a “downward adjustment . . . for acceptance 

of responsibility is warranted.” J.A. 153. That unqualified statement is distinct from 

language that would make the government’s obligation “conditional” on its future 

assessment of a defendant’s acceptance. See United States v. Boggs, 584 F. App’x 130, 

132 n.2 (4th Cir. 2014) (per curiam); see also United States v. Chase, 466 F.3d 310, 312–

14 (4th Cir. 2006). In the absence of such a conditional term, the government must 
12

The government’s response – that the record “amply demonstrates” Wilson’s 

breach, Appellee’s Br. 28 – misses the mark. For one thing, it is not obvious that Wilson’s 

objections to certain paragraphs of the PSR violated the parties’ stipulation to a drug weight 

of between three and ten kilograms of heroin. Those objections were submitted in writing 

before the government confirmed to the district court that it continued to support an 

acceptance-of-responsibility reduction, and they left unchallenged the key PSR paragraph 

describing over seven of the 7.48 total kilograms of heroin attributed to Wilson. Moreover, 

Wilson confirmed at sentencing that he stood by the agreement’s stipulation and had 

objected only to the timeline laid out in the relevant paragraphs. And while the record is 

not clear as to how that explanation was received, it is possible that the district court 

believed the government was satisfied, and no longer was pursuing its motion. 

More fundamentally, of course, whether the record supports a finding that Wilson 

breached his plea agreement is a matter to be resolved by a court before the government is 

freed of its obligations, not after the government reneges. Regardless of whether Wilson 

breached the agreement, the government remained bound by its terms unless and until the 

district court determined otherwise. Because the government, as it concedes, did not 

comply with those terms, Wilson is entitled to relief. And because Wilson does not seek 

withdrawal of his guilty plea but only “the lesser relief of specific performance of the 

agreement,” we honor that election and remand with the direction that the defendant be 

advocate for a reduction to which it stipulates, unless a court finding relieves it of that duty. 

See United States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994). 
13

resentenced by a different judge. Edgell, 914 F.3d at 291 (citation omitted); see id. at 291 

n.5 (“When specific performance is elected by a defendant, resentencing always takes place 

before a different judge.”). On resentencing, the government, if it wishes, may raise with 

the district court any ground that it believes would relieve it of its plea-agreement 

obligations with respect to acceptance of responsibility.

III.

For the foregoing reasons, we vacate Wilson’s sentence and remand for 

resentencing before a different district court judge. 

VACATED AND REMANDED
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QUATTLEBAUM, Circuit Judge, concurring in the judgment:

I join in the majority’s conclusion that Wilson’s sentence must be vacated and the 

matter be remanded for resentencing. I write separately, however, to explain that my 

agreement rests largely on the fact that the government agrees that Wilson preserved the 

issue of whether the government breached the plea agreement. While the question is close, 

I do not believe Wilson preserved the issue below. 

As the majority ably notes, most of the facts here are not in dispute. The government 

agreed in the plea agreement to argue in favor of a downward adjustment based on 

acceptance of responsibility. The government then moved to be relieved of its obligation 

to argue for such an adjustment, which Wilson, in turn, opposed. Without ruling on the 

government’s motion, the district court pivoted to a separate but related issue—was Wilson 

entitled to a downward adjustment for acceptance of responsibility if he also obstructed 

justice? The district court indicated its belief that obstruction would bar an acceptance-ofresponsibility reduction, heard testimony and found obstruction by a preponderance of 

evidence. The district court thus gave Wilson no reduction for acceptance of responsibility. 

Admittedly, the parties at that point were in a bit of a pickle. The district court, of 

course, was not bound by the plea agreement. And it was entitled to deny a reduction for 

acceptance of responsibility because of Wilson’s obstruction of justice.* So the issue of 

* Application Note Four to Section 3E1.1 of the United States Sentencing Guidelines 

states: “Conduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding the 

Administration of Justice) ordinarily indicates that the defendant has not accepted 

responsibility for his criminal conduct. There may, however, be extraordinary cases in 

which adjustments under both [obstruction] and [acceptance of responsibility] may apply.” 
15

whether the government should be relieved of its obligation under the plea agreement to 

argue for a downward adjustment was, for the most part, water under the bridge. Perhaps 

for that reason, as the majority notes, the government did not argue for the downward 

adjustment. But likewise, Wilson did not argue that the government breached the plea 

agreement by failing to make that argument. Without being pressed by either party, the 

district court did not return to the government’s motion to be relieved of its responsibilities 

under the plea agreement. Thus, we are now in an unusual position. We must review the 

government’s conduct, not a decision by the district court. And while perhaps all parties 

share responsibility for that situation, Wilson nonetheless bore the obligation to object to 

the government’s breach of the plea agreement. Because he failed to do so, I believe the 

issue is unpreserved.

And whether the issue was preserved would make all the difference. If it was, as 

the majority notes, vacatur is required. See Santobello v. New York, 404 U.S. 257, 262–63 

(1971). But if it was not, we review for plain error, Puckett v. United States, 556 U.S. 129, 

140–43 (2009), which requires a showing of prejudice that Wilson almost certainly would 

be unable to make. 

That brings us full circle to the government’s concession that Wilson preserved the 

issue. On the one hand, we have held that standards of review cannot be waived. See

The district court’s language on this issue made the impact of obstruction on acceptance of 

responsibility more absolute than the guidelines suggest. But there is nothing about the 

record to suggest this would be one of the extraordinary cases to depart from the general 

rule. 
16

Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 286 (4th Cir. 2018) (“[A]s our sister 

circuits have held, parties cannot waive the proper standard of review by failing to argue 

it.” (internal quotation marks omitted) (citations omitted)). On the other, we have declined 

to apply plain error review when “the government itself failed to raise any such argument 

in its opening brief.” United States v. Ashford, 718 F.3d 377, 380 (4th Cir. 2013). And 

here the government affirmatively agrees that Wilson preserved the issue. Under these 

circumstances, I agree with the majority that “the ‘interests of fairness’ dictate that we take 

the case as the government has presented it to us.” Maj. Op. at 9 n.2 (quoting Ashford, 718 

F.3d. at 381). 

For these reasons, I concur in the judgment.