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

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3734

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Morris Yellow, *

*

Appellant. *

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Submitted: October 19, 2010

Filed: December 10, 2010

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Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

Pursuant to a written plea agreement, Morris Yellow pleaded guilty to sexual

abuse of a minor. The district court1

 sentenced him to 108 months' imprisonment after

denying a three-level acceptance-of-responsibly reduction under U.S.S.G. § 3E1.1.

Yellow timely appeals, claiming that the government breached the plea agreement by

failing to adequately recommend an acceptance-of-responsibility reduction and by
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undermining the reduction by presenting evidence of obstruction of justice. We

affirm.

I.

On July 20, 2009, Yellow appeared before the district court to plead guilty to

one count of sexually abusing a minor, in violation of 18 U.S.C. § 2243, for his

prolonged abuse of a foster child placed in his care. In exchange for his plea, the

government agreed to drop other charges against him and agreed to recommend a

three-level acceptance-of-responsibility reduction. The government made no express

promise as to whether it would forgo pursuing an obstruction-of-justice enhancement,

and the government reserved the right to rebut any mitigating evidence raised by

either the Pre-Sentence Investigation Report ("PSR") or Yellow.

Prior to the sentencing hearing, Yellow received a copy of the preliminary draft

of the PSR and objected to several portions of it, including recommendations that he

receive an obstruction-of-justice enhancement for pressuring the victim to recant her

testimony and that he be denied an acceptance-of-responsibility reduction for

obstructing justice, violating the terms of his pre-trial release, and telling his wife that

he was innocent. Yellow asserted in his objections that he did not obstruct justice

because he never personally attempted to pressure the victim into recanting, even

though there was evidence that his wife may have done so. Yellow also asserted that

he was entitled to the acceptance-of-responsibility reduction because he did not

obstruct justice, he pleaded guilty, and, knowing his pre-trial conduct, the government

nevertheless agreed to recommend the three-level reduction in the plea agreement.

The government made no objections to the draft PSR.

On November 9, 2009, the district court accepted Yellow's plea of guilty and

held a sentencing hearing. At the hearing, the government provided compelling

evidence that Yellow and his wife "equally" pressured the victim into recanting after
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Yellow also asserts, in passing, that the district court plainly erred in

calculating his guideline range; however, this argument is foreclosed by the plea

agreement's appellate waiver. In contrast, Yellow's argument that the government

breached the plea agreement survives the appellate waiver. United States v. Lovelace,

565 F.3d 1080, 1085–86 (8th Cir. 2009).

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inviting the victim over for Christmas. The government did not present any evidence

directly on the acceptance-of-responsibility issue and, in argument, stated: "Now,

pursuant to the terms of the Plea Agreement, your Honor, I am required to request that

the Court grant acceptance of responsibility to [Yellow]." The Court, after hearing

this testimony and argument, found that Yellow had obstructed justice by pressuring

the victim. The Court also found that Yellow had not accepted responsibility both

because he had obstructed justice and because letters written in support of Yellow

indicated that Yellow had maintained his innocence in the community. The Court

then sentenced Yellow at the top of the advisory guideline range. At the time of the

sentencing, Yellow failed to object to the government's conduct as being a breach of

the plea agreement.

II.

Yellow argues that the government clearly breached the plea agreement's

provision on recommending an acceptance-of-responsibility reduction.2

 Yellow

specifically asserts that the government failed to adequately support this reduction by

declining to object to the draft PSR's recommendation against the reduction. Yellow

also asserts that the government acted in bad faith and "essentially destroyed any

opportunity" for the district to grant a reduction by presenting evidence of obstruction

of justice because, under the Sentencing Guidelines, courts generally cannot find both.

See U.S. Sentencing Guidelines § 3E1.1 cmt. n.4 ("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
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conduct. There may, however, be extraordinary cases in which adjustments under

both §§ 3C1.1 and 3E1.1 may apply."). We disagree.

"Plea agreements are contractual in nature and should be interpreted according

to general contractual principles." United States v. Thompson, 403 F.3d 1037, 1039

(8th Cir. 2005). "[W]hen a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S.

257, 262 (1971). "Allowing the government to breach a promise that induced a guilty

plea violates due process" and undermines 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." Thompson, 403 F.3d at 1039 (internal

quotation and citations omitted). "The party asserting the breach . . . has the burden

of establishing a breach." United States v. Smith, 429 F.3d 620, 630 (6th Cir. 2005).

We review for plain error whether the government breached the plea agreement

in this case because Yellow failed to raise this issue during the sentencing

proceedings. United States v. Smith, 590 F.3d 570, 576–77 (8th Cir. 2009). "Under

plain error review, we must determine whether there was (1) an error, (2) that is clear

or obvious, and (3) that affected the appellant's substantial rights, which in the

ordinary case means he must demonstrate that it affected the outcome of the district

court proceedings." United States v. Jeffries, 569 F.3d 873, 875–76 (8th Cir. 2009)

(internal citation and quotation omitted). If these three conditions are met, we may

remedy the error if it "seriously affects the fairness, integrity or public reputation of

judicial proceedings." Puckett v. United States, 129 S.Ct. 1423, 1429 (2009) (internal

quotation omitted).

We find no clear breach of the plea agreement in light of controlling case law.

In United States v. Has No Horses, our Court faced a similar situation and found that

the government was not required to object to a PSR's recommendation against an
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acceptance-of-responsibility reduction so long as the government made this

recommendation to the district court at sentencing. 261 F.3d 744, 750 (8th Cir. 2001).

Our Court also rejected the argument that the government implicitly agrees to forgo

pursuing an obstruction-of-justice enhancement when it agrees to recommend an

acceptance-of-responsibility reduction because both adjustments may apply in a given

case. Id. Finally, our Court indicated that the government's lack of enthusiasm when

making a recommendation does not constitute a breach of the plea agreement. Id.

Consequently, in light of precedent, we can find no plain error in Yellow's case

because the government did recommend, albeit unenthusiastically, an acceptance-ofresponsibility reduction and because the government never promised to refrain from

presenting evidence of obstruction of justice.

III.

Based upon the foregoing reasons, we determine there was no breach of the plea

agreement and thereby affirm the judgment of the district court.

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