PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JEROLD D. FISHER, 

 Defendant - Appellant. 

No. 14-3257 

_________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF KANSAS 

(D.C. No. 5:13-CR-40035-JAR-1)

_________________________________ 

Timothy J. Henry, Assistant Federal Public Defender (Melody Brannon Evans, Federal 

Public Defender, with her on the briefs), Office of the Federal Public Defender for the 

District of Kansas, Wichita, Kansas, appearing for Defendant-Appellant. 

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States 

Attorney, with him on the brief), Office of the United States Attorney for the District of 

Kansas, Topeka, Kansas, appearing for Plaintiff-Appellee. 

_________________________________ 

Before LUCERO, HOLMES, and MATHESON, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

Jerold D. Fisher entered a plea agreement and pled guilty to submitting fraudulent 

tax returns to the Internal Revenue Service. In return, the Government promised, among 

other things, not to charge Mr. Fisher with any further crimes arising out of the same 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 10, 2015

Elisabeth A. Shumaker 

Clerk of Court

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underlying conduct. Following the plea agreement and before sentencing, the district 

court found Mr. Fisher had breached the plea agreement and released the Government 

from its no-new-charges obligation. The Government then indicted Mr. Fisher on related 

structuring charges. The court subsequently reversed itself and reinstated the plea 

agreement, but the Government did not dismiss the new indictment. 

At sentencing on the tax fraud charge, Mr. Fisher asked the district court to find 

that the Government (1) had breached the plea agreement by failing to dismiss the 

structuring charges, and (2) had engaged in vindictive prosecution. The court sentenced 

Mr. Fisher to 41 months in prison without ruling on either of those requests. 

Mr. Fisher now appeals, arguing the district court committed procedural error by 

declining to decide his governmental breach claim. Because that claim is moot, we lack 

jurisdiction over it. To the extent Mr. Fisher attempts to raise a similar argument 

regarding his vindictive prosecution claim, he has forfeited that claim and waived it 

through inadequate briefing. We therefore grant the Government’s motion to dismiss this 

appeal. 

I. BACKGROUND 

1. The Original Indictment and Plea Agreement 

On May 1, 2013, a federal grand jury indicted Mr. Fisher on two counts of 

violating 18 U.S.C. § 287, which prohibits knowingly presenting “false, fictitious, or 

fraudulent” claims to any agency or department of the United States. According to the 

indictment, Mr. Fisher filed false Forms W-2 purporting to show that Fisher Alfalfa 

Farms, of which he claimed to be the registered agent, had paid him $8,877,934 in wages 

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and withheld $3,997,436 in employment taxes for tax years 2006 through 2009. He also 

allegedly submitted fraudulent Forms 1040 for himself. Based on these fabricated 

documents, the U.S. Treasury sent him checks and electronic transfers totaling 

$3,866,021. 

On February 14, 2014, Mr. Fisher and the Government entered into a plea 

agreement, under which the Government dismissed Count 1 in return for a guilty plea to 

Count 2. Mr. Fisher’s promises in the plea agreement included the following: 

c. The defendant agrees to fully and completely assist the 

United States in the identification and recovery of forfeitable assets, either 

domestic or foreign, which have been acquired directly or indirectly 

through the unlawful activities of the defendant. 

d. The defendant agrees to cooperate fully with the United 

States Attorneys Office and to provide a financial statement on a form 

approved by the USAO that discloses all assets in which defendant has any 

interest or over which the defendant exercises control, directly or indirectly, 

including those held by a spouse, nominee or other third party, as well as 

any transfer of assets that has taken place in the last 5 years. 

e. The defendant agrees to submit to an examination, which may 

be taken under oath and may include a polygraph examination. 

. . . . 

g. The defendant agrees to not encumber, transfer, or dispose of 

any monies, property or assets under defendant’s custody or control, 

without written approval from the United States Attorneys Office. 

ROA, Vol. 1 at 48-49. In return, the Government agreed (1) not to “file any additional 

charges against the defendant, or any one acting in concert with the defendant, arising out 

of the facts forming the basis for the present indictment,” (2) to recommend a sentence of 

36 months, and (3) to recommend a two- or three-level reduction for acceptance of 

responsibility under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3E1.1. 

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ROA, Vol. 1 at 52. These obligations were “contingent upon the defendant’s continuing 

manifestation of acceptance of responsibility as determined by the United States”: 

In the event the Court finds the defendant has breached this plea agreement 

or otherwise failed to adhere to its terms, the United States shall not be 

bound by this paragraph and may pursue any additional charges arising 

from the criminal activity under investigation as well as any perjury, false 

statement, or obstruction of justice charges which may have occurred. 

ROA, Vol. 1 at 52-53. The Government also bound itself “not to use new information 

the defendant provides about the defendant’s own criminal conduct except as specifically 

authorized by U.S.S.G. § 1B1.8,” which permits the use of “self-incriminating 

information” against a cooperating defendant in limited circumstances. ROA, Vol. 1 at 

53; U.S. Sentencing Guidelines Manual § 1B1.8 (U.S. Sentencing Comm’n 2014). 

 Finally, the plea agreement contained a waiver of Mr. Fisher’s right to “appeal or 

collaterally attack any matter in connection with this prosecution, [his] conviction, or the 

components of the sentence to be imposed.” ROA, Vol. 1 at 55. The waiver contained 

an exception that permitted Mr. Fisher to bring “claims with regards to ineffective 

assistance of counsel or prosecutorial misconduct.” ROA, Vol. 1 at 56. 

2. Initial Sentencing Hearing 

As provided by the plea agreement, the Government deposed Mr. Fisher on May 

6, 2014. On May 27, 2014, the district court conducted a brief sentencing hearing, at 

which neither party objected to the presentence report. The district court calculated the 

Guidelines range as 41 to 51 months and announced that it tentatively intended to impose 

the 36-month sentence jointly recommended by the parties. After explaining its reasons 

for that sentence, however, the court asked the Government how much of Mr. Fisher’s 

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unlawfully obtained money had been recovered. The Government responded that despite 

making “diligent efforts to try to locate assets,” it had only “recovered a fraction of the $4 

million.” ROA, Vol. 3 at 11-12. 

Unconvinced that the stolen funds were “gone to the wind,” the district court 

continued the sentencing to give Mr. Fisher an opportunity to “think about it some more 

and think about maybe there’s some other information he might be able to offer.” ROA, 

Vol. 3 at 13. “[A]s it stands right now,” the court explained, “I’m not willing, without 

any further explanation, to honor the parties’ agreement to sentence Mr. Fisher to under 

the guideline range. I’m just not. Not with this amount of loss.” ROA, Vol. 3 at 13-14. 

Mr. Fisher, as he was being led from the courtroom, exclaimed to the court, “Three 

million was lost in the stock market. They know that.” ROA, Vol. 3 at 15. 

3. Government’s Motion to Find Mr. Fisher in Breach of the Plea Agreement 

The Government subsequently filed a Motion to Determine If Defendant Has 

Breached His Plea Agreement. The Government sought to be released from paragraph 5 

of the agreement—which concerns the filing of additional charges, Mr. Fisher’s 

recommended sentence, and acceptance of responsibility—on the ground that Mr. Fisher 

had not manifested acceptance of responsibility. In particular, the Government claimed 

that Mr. Fisher “ha[d] obfuscated on the issue of his assets and ha[d] failed to provide 

documentation, as requested, to establish that he lost $3,000,000 in the stock market as he 

represented to the Court in his aborted sentencing hearing on May 27, 2014.” ROA, Vol. 

1 at 99. The Government also alleged “Fisher ha[d] been trying to get assistance from 

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one or more fellow inmates at [Corrections Corporation of America] to help him move 

money that he ha[d] under his control covertly.” ROA, Vol. 1 at 99-100. 

4. Second Sentencing Hearing 

At a second sentencing hearing on July 7, 2014, the Government presented 

testimony from IRS Special Agent Lamont Wynn. Special Agent Wynn made allegations 

against Mr. Fisher based on information from Mr. Fisher’s fellow inmate who was a 

cooperating witness in a different case. 

First, Special Agent Wynn testified that according to the informant, Mr. Fisher had 

been making phone calls using other prisoners’ personal identification numbers (PINs) to 

prevent Government monitoring of his calls. The informant had reported that on one 

such call, Mr. Fisher instructed his girlfriend, Renita Lewis, to sell weight-lifting 

equipment he had purchased with tax fraud proceeds. Second, Special Agent Wynn 

claimed Mr. Fisher had been tutoring other inmates on how to obtain tax refunds, both 

legally and illegally. 

5. Third Sentencing Hearing 

At a third sentencing hearing on July 28, 2014, the Government submitted a 

transcript of a May 9, 2014 phone call Mr. Fisher placed to Ms. Lewis, using another 

prisoner’s PIN. Mr. Fisher started that call by telling Ms. Lewis, “Twelve with one of the 

long things,” then spoke in what appears to be code for several minutes, ROA, Ex. 1, to 

disguise, the Government argued, his efforts to dispose of assets through Ms. Lewis. At 

the end of the call, Mr. Fisher said if his family did not pay a $350 outstanding warrant 

for his arrest, 

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well they will see what $350 will cost them. It’s going to cost 

motherfucking farm ground and five years in jail I can put them all away, 

there, so that’s fine with me. I’m not going to do any more time for their 

stupidity and everything and their bullshit and stuff. 

ROA, Vol. 4 at 3. The Government claimed Mr. Fisher was threatening to turn his 

relatives in to the Government if they did not assist him with the warrant. According to 

the Government, Mr. Fisher’s threats suggested he and his family had been attempting to 

dispose of assets without the Government’s knowledge. 

6. District Court Finds Mr. Fisher Breached the Plea Agreement 

On August 27, 2014, the district court granted the Government’s motion to find 

Mr. Fisher in breach, concluding he “ha[d] failed to fully and honestly identify and 

disclose the location and or disposition of assets and property derived from the offense, 

only providing limited information of questionable credibility when pressed.” ROA, Vol. 

1 at 330. Specifically, the court found Mr. Fisher had withheld all information about his 

stock market losses until after the May 27, 2014 sentencing hearing, failed to disclose 

that family members possessed some of his assets, and attempted to dispose of other 

assets through Ms. Lewis without the Government’s knowledge. Because it concluded 

Mr. Fisher had breached, the court released the Government from several of its 

obligations under the plea agreement, including its promise not to file new charges 

against Mr. Fisher. 

7. New Charges Against Mr. Fisher and Ms. Lewis 

On September 24, 2014, the Government indicted Mr. Fisher and Ms. Lewis on 

seven counts of structuring, in violation of 31 U.S.C. § 5324(a)(3). The indictment 

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recited the facts of Mr. Fisher’s first case, including his submission of fraudulent tax 

returns and his agreement to plead guilty on February 14, 2014. It further alleged that 

Mr. Fisher and Ms. Lewis deposited his illegal tax proceeds into various bank accounts in 

a manner designed to “evad[e] the reporting requirements” that federal law imposes on 

financial institutions. Aplt. Br., Attach. C at 4-10; 31 U.S.C. § 5324(a). 

The Government was free to seek this second indictment because the district 

court’s August 27, 2014 order lifted the restrictions imposed by paragraph five of the plea 

agreement. That order was based on the court’s belief that it was “not until the May 27 

sentencing hearing [that] Defendant offer[ed], in an excited utterance as he left [the] 

courtroom, that he had lost monies in the stock market.” ROA, Vol. 1 at 341. “And, in 

the aftermath of the May 27 hearing,” the court explained in its order, “Defendant for the 

first time produced records of stock market transactions that identified and quantified a 

net loss of $1.9 million in the stock market.” ROA, Vol. 1 at 341. 

It turned out, however, that the district court was in error: both parties agree on 

appeal that the Government had been in possession of records from Mr. Fisher’s E*Trade 

accounts since 2010, and that those records show stock market losses of between $1.9 

million and $2.2 million. 

8. Mr. Fisher Moves for Reconsideration 

Given the district court’s factual misunderstanding, on September 30, 2014, Mr. 

Fisher moved for reconsideration of the August 27 order. On October 28, 2014, the court 

granted Mr. Fisher’s motion. The court found that as a result of poor briefing from both 

parties, “[i]t was not made clear to the Court when deciding whether Defendant breached 

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the Plea Agreement that the records [of Mr. Fisher’s E*Trade accounts] were provided 

before May 27.” ROA, Vol. 1 at 1457. Because the Government had in fact possessed 

those records before executing the plea agreement, the court concluded Mr. Fisher had 

not breached and “the Government continues to be bound by the terms of the Plea 

Agreement at sentencing.” ROA, Vol. 1 at 1460. 

9. Motion for Variance 

Mr. Fisher filed a Motion for a Guideline Variance to a Sentence of Time Served 

on November 3, 2014. He argued the Government had breached the plea agreement by 

filing a new indictment based in part on evidence obtained during Mr. Fisher’s May 6, 

2014 deposition. As a remedy for this breach, Mr. Fisher sought only to be relieved of 

his obligations under paragraphs 1(c)-(g) of the plea agreement, which required him to 

cooperate with the Government in disclosing and recovering assets. 

In addition, Mr. Fisher’s motion accused the Government of engaging in 

vindictive prosecution. He alleged, in particular, that the Government had brought the 

structuring charges to punish Mr. Fisher for refusing to plead guilty in a 2012 case; the 

Government had continued to investigate Mr. Fisher, even prior to his alleged breach of 

the tax fraud plea agreement, because it intended all along to obtain an additional 

indictment against him; and during his deposition, the Government had attempted to trick 

Mr. Fisher into lying so that it could bring perjury charges against him. The sole remedy 

he sought for the alleged prosecutorial vindictiveness was a sentence of time served. 

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10.Fourth and Final Sentencing Hearing 

The district court held its fourth and final sentencing hearing on November 3, 

2014. At that hearing, the court said the arguments raised in Mr. Fisher’s motion for 

variance affected only the structuring case against Mr. Fisher, not the instant tax fraud 

case, and that Mr. Fisher should therefore raise those concerns only in the second case, 

which was before a different judge. 

The Government announced it did not intend to seek Mr. Fisher’s cooperation 

going forward. The court agreed that once a sentence was handed down in the tax fraud 

case, the Government could not seek to enforce paragraphs 1(c)-(g) of the plea 

agreement. 

The district court imposed a sentence of 41 months in prison followed by three 

years of supervised release, as well as $4,039,781 in restitution to the IRS. When defense 

counsel inquired whether Mr. Fisher’s vindictive-prosecution claim had factored into the 

final sentence, the court responded: 

I decided it would be more appropriate in the other case. I don’t think I 

have sufficient evidence to grant a variance on that basis. I think it’s more 

appropriately taken up in the other case where it can be fully heard. And I 

think the appropriate remedy could be had in that case, everything from 

dismissal to remedies short of that. 

ROA, Vol. 3 at 142-43. 

On November 4, 2014, the day after the final sentencing hearing, the Government 

moved to dismiss the structuring charges against Mr. Fisher and Ms. Lewis. 

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11. Mr. Fisher’s Appeal 

Mr. Fisher filed a timely notice of appeal on November 12, 2014. On December 

10, 2014, the Government moved to enforce Mr. Fisher’s appeal waiver under 10th 

Circuit Rule 27.2(A)(1)(d). The Government’s motion also sought dismissal of the 

appeal under 10th Circuit Rule 27.2(A)(1)(b), which provides for “summary disposition 

because of a supervening change of law or mootness.” After Mr. Fisher responded, his 

appeal was referred to this panel. 

II. DISCUSSION 

Mr. Fisher made two arguments in his motion for variance and at the sentencing 

hearing before the district court. First, he argued the Government had breached the plea 

agreement. On appeal, he argues the district court erred when it declined to rule on this 

issue. The problem with this argument is that Mr. Fisher has already obtained all the 

relief he requested for the Government’s alleged breach, rendering that issue moot. 

Accordingly, we grant the Government’s motion to dismiss the breach issue as moot. 

Second, Mr. Fisher argued in district court that he should be sentenced to time 

served because the Government engaged in vindictive prosecution. On appeal, although 

he may, as with his breach issue, be alleging the district court erred by refusing to decide 

this issue, he has failed to brief it adequately. We therefore do not consider it. 

A. Government Breach Claim Is Moot 

Mr. Fisher contends the district court erred by failing to rule on his request to find 

the Government in breach of the plea agreement for failing to dismiss the second 

indictment before he was sentenced. He argues the “Government’s breach of its plea 

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agreement obligations requires remand for resentencing before a different judge.” Aplt. 

Br. at 22. 

We may reach the merits of Mr. Fisher’s appeal only if (1) Mr. Fisher’s appeal 

waiver is unenforceable, and (2) his claims are not moot. “The mootness question 

necessarily constitutes our threshold inquiry, because the existence of a live case or 

controversy is a constitutional prerequisite to the jurisdiction of the federal courts.” In re 

L.F. Jennings Oil Co., 4 F.3d 887, 889 (10th Cir. 1993) (quotation omitted). We review 

mootness de novo as a legal question. Id. 

1. Mootness Standard 

“Article III of the United States Constitution limits the jurisdiction of federal 

courts to the adjudication of ‘Cases’ or ‘Controversies.’” Jordan v. Sosa, 654 F.3d 1012, 

1019 (10th Cir. 2011) (quoting U.S. Const. art. III, § 2, cl. 1). This case-or-controversy 

limitation requires that parties continue to have a personal stake in the outcome of a 

lawsuit during all stages of litigation, including appellate review. See United States v. 

Juvenile Male, 131 S. Ct. 2860, 2864 (2011); Spencer v. Kemna, 523 U.S. 1, 7 (1998); S. 

Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (“Article III mootness 

is ‘the doctrine of standing set in a time frame: The requisite personal interest that must 

exist at the commencement of the litigation (standing) must continue throughout its 

existence (mootness).’” (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 

68 n.22 (1997))). 

“We have held a case or controversy no longer exists when it is impossible to 

grant any effectual relief.” Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d 884, 

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891 (10th Cir. 2008); see also S. Utah Wilderness All., 110 F.3d at 727 (“[T]o be 

cognizable, a suit must be ‘a real and specific controversy admitting of specific relief 

through a decree of a conclusive character.’” (quoting Preiser v. Newkirk, 422 U.S. 395, 

401 (1975))). A claim is moot if a party has already obtained the only relief it seeks. See 

S. Utah Wilderness All., 110 F.3d at 727 (affirming district court’s finding that case was 

moot where “the only relief sought . . . has already been obtained”). 

2. Analysis 

Mr. Fisher’s claim for government breach of the plea agreement is moot. He has 

already received all the relief he requested for that alleged breach. 

Federal Rule of Criminal Procedure 32(i)(3)(B) provides that “[a]t sentencing, the 

court . . . must—for any disputed portion of the presentence report or other controverted 

matter—rule on the dispute or determine that a ruling is unnecessary either because the 

matter will not affect sentencing, or because the court will not consider the matter in 

sentencing.” Mr. Fisher contends the court violated this rule when it declined to decide 

his “disputed” motion to find the Government had breached the plea agreement and 

instead determined the alleged governmental breach should be addressed in his 

structuring case. 

This claim is moot because, even if the district court erred in declining to decide 

this issue, or even if the court had determined the Government had breached the plea 

agreement, Mr. Fisher received everything he requested by way of relief. He asked the 

district court only for release from paragraphs 1(c)-(g) of the plea agreement, which 

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concern his cooperation obligations, as the sole remedy for the Government’s alleged 

breach.1

 

 At the sentencing hearing, Mr. Fisher obtained release from his cooperation 

obligations. The prosecutor announced that the Government had “no intention of asking 

[Mr. Fisher] to cooperate any further” and that it “d[id] not intend to take his deposition, 

[and] d[id] not intend for him to provide any more information.” ROA, Vol. 3 at 126. 

Although the parties did not execute any formal amendment of the plea agreement to 

clarify that Mr. Fisher’s duty to cooperate terminated with the entry of judgment, the 

entirety of the transcript indicates that it did. The district court confirmed this 

interpretation when it told defense counsel that the Government had “conceded that they 

are no longer able to enforce any obligation on Mr. Fisher’s part to continue to cooperate 

in the identification and recovery of assets.” ROA, Vol. 3 at 132 (116:19-22). 

Mr. Fisher has obtained “the only relief [he] sought” for the Government’s alleged 

breach of the plea agreement. S. Utah Wilderness All., 110 F.3d at 727. That relief 

renders his breach claim moot and divests us of subject matter jurisdiction over the 

breach issue. Id. Accordingly, we have neither the need nor the authority to decide 

whether Mr. Fisher has waived his right to bring this appeal on the breach claim or 

whether his claim is meritorious. 

 

1 The motion containing that request also sought a sentence of time served. But 

Mr. Fisher requested time served only as a remedy for the Government’s alleged 

prosecutorial vindictiveness—not as a remedy for breach of the plea agreement. We 

address the vindictive prosecution part of his motion below.

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B. Vindictive Prosecution Claim Was Waived and Forfeited 

We do not consider Mr. Fisher’s vindictive prosecution claim because he has 

waived it through inadequate briefing. In any event, this claim also was forfeited in 

district court.2

 

1. Mr. Fisher Waived His Vindictive Prosecution Claim 

a. Requirement to Present Arguments in the Opening Brief 

We have said that the “first task of an appellant is to explain to us why the district 

court’s decision was wrong.” Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th 

Cir. 2015). We cannot rule on those issues the appellant does not bring to our attention. 

For this reason, 10th Circuit Rule 28(a)(8) instructs that the “appellant’s brief must 

contain, under appropriate headings and in the order indicated . . . appellant’s contentions 

and the reasons for them, with citations to the authorities and parts of the record on which 

the appellant relies.” 

 

2

 The Government argues in its motion to dismiss that Mr. Fisher’s Rule 32 

vindictive prosecution claim is moot because it “stem[med] from the filing of the new 

indictment in the new case,” which was subsequently dismissed. Doc. 10231156 at 10-

11. We ordinarily decide subject matter jurisdiction questions such as mootness before 

addressing other issues. See Smith v. Rail Link, Inc., 697 F.3d 1304, 1313 (10th Cir. 

2012). But “[f]ederal courts may choose to avoid difficult subject matter jurisdiction 

questions and dispose of a case on a ‘threshold, nonmerits issue,’ . . . so long as resolving 

the issue ‘does not entail any assumption by the court of substantive law-declaring 

power.’” Valenzuela v. Silversmith, 699 F.3d 1199, 1205 (10th Cir. 2012) (quoting 

Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 433, 436 (2007)). Here, 

deciding Mr. Fisher’s vindictive prosecution claim on the basis of inadequate briefing 

and forfeiture resolves a “nonmerits issue” that “does not entail any assumption . . . of 

substantive law-declaring power.” We may therefore pass over the question of whether 

the Government mooted that claim by dismissing the structuring charges against Mr. 

Fisher. 

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“Consistent with this requirement, we routinely have declined to consider 

arguments that are not raised, or are inadequately presented, in an appellant’s opening 

brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). The latter half of this 

formulation is as important as the former. While the “omission of an issue in an opening 

brief generally forfeits appellate consideration of that issue,” Kitchen v. Herbert, 755 

F.3d 1193, 1208 (10th Cir. 2014) (quotation omitted), it is equally true that an “issue 

mentioned in a brief on appeal, but not addressed, is waived,” Utah Envtl. Cong. v. 

Bosworth, 439 F.3d 1184, 1194 n.2 (10th Cir. 2006); see also Muscogee (Creek) Nation 

v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (“[I]ssues designated for review are lost if 

they are not actually argued in the party’s brief.” (quotation omitted)). And the appellant 

must present his claims in a way that does not compel us to scavenge through his brief for 

traces of argument. See Nixon, 784 F.3d at 1370 (declining to address an argument in 

part because it was “misleadingly placed under a heading for a different issue”). 

b. Analysis 

In district court, Mr. Fisher claimed vindictive prosecution at the same time he 

moved to find the Government in breach of the plea agreement. The portion of his 

opening appeal brief that addresses Rule 32, however, only argues that the district court 

erroneously failed to rule on his government breach claim. There is no argument the 

district court also violated Rule 32 by sidestepping a ruling on his vindictive prosecution 

claim. See Aplt. Br. at 23 (“Clearly, raising governmental breach of the present plea 

agreement needs to be resolved prior to sentencing.”), 24 (“The issue raised here, breach 

of a plea agreement, is not trivial, and required a ruling from the district court.”). 

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Read generously, several stray sentences elsewhere in Mr. Fisher’s brief could be 

construed to present an argument that the district court should have ruled on his 

vindictive prosecution claim. See, e.g., Aplt. Br. at 24-25 (“The district court’s error in 

this case stems from its erroneous belief that sentencing Fisher would moot the 

underlying obligations of the plea agreement, and that issues of vindictive prosecution 

and breach of the plea agreement by the Government didn’t have to be decided for 

purposes of this sentencing, but simply in the new indictment’s case before a different 

judge.” (emphasis in original)). But these scattered sentences fail to comply with 10th 

Circuit Rule 28(a)(8) because they do not “contain, under appropriate headings and in the 

order indicated . . . appellant’s contentions and the reasons for them.” We therefore need 

not consider a Rule 32 argument regarding Mr. Fisher’s vindictive prosecution claim. 

See Bronson v. Swensen, 500 F.3d at 1104.

Language in Mr. Fisher’s reply brief could be construed as an argument that the 

district court violated Rule 32 when it declined to rule on his vindictive prosecution 

claim. See Aplt. Reply Br. at 12 (disputing Government’s assertion that “defense trial 

counsel . . . fail[ed] to object to the district court’s ruling that it was deferring the 

prosecutorial vindictiveness claim to the new case and court”). But this language does 

not present Mr. Fisher’s “contentions and the reasons for them” any more clearly than his 

opening brief. Mr. Fisher’s Rule 32 vindictive prosecution claim is not properly before 

us, and we do not consider it. 

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2. Mr. Fisher Forfeited His Vindictive Prosecution Claim in District Court 

Mr. Fisher also forfeited his Rule 32 vindictive prosecution argument because he 

did not object to the lack of a Rule 32 ruling in the district court and does not argue for 

plain error on appeal. If a defendant “ha[s] not raised a separate objection to the district 

court’s failure to make an appropriate finding under [. . . Rule 32(i)(3)(B)], our review 

[i]s limited to determining whether this alleged failure to make a specific finding 

amounted to plain error.” United States v. Warren, 737 F.3d 1278, 1284 (10th Cir. 2013)

(second brackets in original) (internal quotation marks omitted). “[T]he failure to argue 

for plain error and its application on appeal . . . surely marks the end of the road for an 

argument for reversal not first presented to the district court.” United States v. Lamirand, 

669 F.3d 1091, 1099 n.7 (10th Cir. 2012) (ellipsis in original) (quotation omitted). Mr. 

Fisher never invoked Rule 32 before the district court. It was therefore Mr. Fisher’s 

burden to argue in his opening brief that the district court committed plain error. He 

failed to do so.

III.CONCLUSION 

Based on the foregoing, we grant the Government’s motion to dismiss Mr. 

Fisher’s claim regarding breach of the plea agreement and affirm his sentence. We deny 

the Government’s motion to enforce the appeal waiver as moot. 

Appellate Case: 14-3257 Document: 01019520916 Date Filed: 11/10/2015 Page: 18