PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4467
LORENZO MARTEZ LEWIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Louise W. Flanagan, Chief District Judge.
(7:05-cr-00142-FL-1)
Argued: December 10, 2010
Decided: February 2, 2011
Before NIEMEYER and KING, Circuit Judges,
and Patrick Michael DUFFY,
Senior United States District Judge
for the District of South Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge King
wrote the opinion, in which Judge Niemeyer and Senior Judge
Duffy joined.
COUNSEL
ARGUED: Jennifer Haynes Rose, LAW OFFICE OF JENNI-
FER HAYNES ROSE, Raleigh, North Carolina, for Appel-
2 UNITED STATES v. LEWIS
lant. Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: George E. B. Holding, United States Attorney, Jenni-
fer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Lorenzo Martez Lewis seeks relief from the sentence
imposed on him in the Eastern District of North Carolina on
his conviction for witness tampering, in contravention of 18
U.S.C. § 1512(b)(1). After entering into a "Memorandum of
Plea Agreement" with the government (the "Plea Agree-
ment"), Lewis was sentenced to forty-six months in prison, to
be served consecutively to the state sentence he was then
serving. Lewis contends on appeal that the district court’s
imposition of a consecutive sentence contravened the Plea
Agreement, because the parties had agreed, pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure, that
Lewis’s sentence "shall be served concurrent with" his state
sentence. Plea Agreement ¶ 5.1 As explained below, we agree
with Lewis that the Plea Agreement was contravened. We
therefore vacate the judgment and remand.
I.
In June of 2008, a grand jury in the Eastern District of
North Carolina returned a three-count superseding indictment
against Lewis. The indictment alleged a firearms charge, in
violation of 18 U.S.C. § 922(g)(1) ("Count One"), plus two
charges of witness tampering, in violation of § 1512(b)(1)
1
The Plea Agreement can be found at J.A. 49-53. (Citations herein to
"J.A. __" refer to the Joint Appendix filed by the parties in this appeal.)
UNITED STATES v. LEWIS 3
("Count Two" and "Count Three").2 On December 5, 2008,
Lewis and the government entered into the Plea Agreement
underlying this appeal, pursuant to which Lewis agreed to
plead guilty to Count Two. Several provisions of the Plea
Agreement supply essential predicate facts for this appeal.
A.
The Plea Agreement’s Paragraph 5 is critical to this appeal,
and provides as follows:
5. The parties agree that the sentence of impris-
onment shall be served concurrent with the state sen-
tence [Lewis] is currently serving and further agree
that the North Carolina Department of Corrections
prison is the appropriate facility for [Lewis] to begin
serving his federal sentence.
Plea Agreement ¶ 5 (emphasis added) (the "concurrent sen-
tence provision"). In Paragraph 6, the parties agreed to a
downward adjustment for Lewis’s acceptance of responsibil-
ity, in a provision that the Plea Agreement specifies as "not
binding on the Court." Id. ¶ 6. In another notable provision,
Paragraph 4.a, the government agreed to dismiss the remain-
ing two counts of the indictment. Id. ¶ 4.a. Paragraph 1 of the
Plea Agreement specified that the "Memorandum of Plea
Agreement" constitutes the parties’ entire agreement. Id. ¶ 1.3
2
Lewis had been previously indicted and tried on the charges contained
in Counts One and Two of the superseding indictment. The trial resulted
in a mistrial, however, and the superseding indictment was thereafter
returned, adding Count Three. The superseding indictment is the operative
indictment for this appeal.
3
Pursuant to Paragraph 1, the breadth of the Plea Agreement was char-
acterized as follows:
1. This Memorandum constitutes the full and complete
record of the Plea Agreement. There are no other agreements
between the parties in addition to or different from the terms
herein.
Plea Agreement ¶ 1.
4 UNITED STATES v. LEWIS
B.
On December 9, 2008, the district court conducted the Rule
11 plea hearing in this case, at which the Plea Agreement was
tendered to the court and Lewis entered his guilty plea to
Count Two. In the Rule 11 colloquy, the court explained to
Lewis that it was not bound by any "recommendation" in the
Plea Agreement, and asked whether Lewis understood that he
might be sentenced more severely than anticipated. J.A. 27.
The court also advised Lewis that "there are some types of
plea agreements that the defendant would be given a chance,
if the court’s not inclined to accept it, to withdraw. And if it’s
not withdrawn, the Court would go forward with sentencing."
Id. at 28. Nevertheless, the court subsequently inquired
whether Lewis understood that, if his plea was accepted, he
could not "withdraw or take it back." Id. at 33. Additionally,
the court asked Lewis if he had read and understood "the
meaning of the words and phrases that make up" the Plea
Agreement and that it represents "any and all agreements that
you’ve got with the United States of America." Id. at 35-36.
Lewis responded affirmatively to the court’s inquiries, and
pleaded guilty to Count Two. The court then accepted Lewis’s
guilty plea to Count Two, stating on the record "I’ll condition-
ally accept the plea agreement tendered here today." Id. at 44.
Indeed, the judge personally signed the Plea Agreement, con-
firming that it was "[c]onditionally approved." Id. at 53. There
was no specific discussion of the concurrent sentence provi-
sion.
On March 11, 2009, the probation officer submitted
Lewis’s presentence report (the "PSR") to the district court,
making recommendations for calculating the advisory Guide-
lines range. The PSR related, inter alia, that the parties had
agreed to a downward adjustment under the Guidelines for
acceptance of responsibility, and had also "agreed that the
sentence of imprisonment will be served concurrent with the
state sentence [Lewis] is currently serving." J.A. 80.
UNITED STATES v. LEWIS 5
On May 12, 2009, five months after the Rule 11 plea hear-
ing, the district court conducted Lewis’s sentencing hearing.
At the hearing, the government complied with its obligation
to recommend that Lewis receive a three-point reduction for
acceptance of responsibility, and the court accepted that rec-
ommendation and fixed his advisory Guidelines range at 37
to 46 months (as recommended by the PSR). After giving
Lewis and his lawyer, as well as the government, an opportu-
nity to be heard, the court adopted the PSR and sentenced
Lewis to forty-six months in prison, to be served consecu-
tively to the state sentence he was then serving. Importantly,
the court explained that,
I am fashioning a sentence that runs the Court’s
imposition in this case of a 46-month term of incar-
ceration in the Federal Bureau of Prisons consecu-
tive to the sentence — and this is over the
defendant’s objection, I know — consecutive to the
state sentence.
J.A. 64 (emphasis added). After the sentence was announced,
Lewis’s lawyer again objected — or at least sought to object
— to the consecutive aspect of the sentence, and the follow-
ing exchange occurred.
Mr. Speaks [Lewis’s lawyer]: Judge, do you recall
that the plea agreement includes language about —
The Court: I am very cognizant of the plea process,
and, in this case, it is unusual for me not to adhere
to what was agreed to, as it is not binding on the
court. Are you making an argument that it is bind-
ing?
Mr. Speaks: No, your Honor. I understand that it’s
not binding.
The Court: Okay. I have a responsibility to impose
a sentence that is sufficient, but not greater than nec-
6 UNITED STATES v. LEWIS
essary, to comply with the purposes of sentencing.
And it’s the Court’s determination that this consecu-
tive sentence accomplishes that purpose. And, for
that reason, I am differing from the agreement of the
parties in imposing the sentence that I’ve imposed.
Id. at 66-67 (emphasis added).
At the sentencing hearing, the district court did not
expressly either accept or reject the Plea Agreement, and it
did not address the question of whether Lewis should have the
opportunity to withdraw his guilty plea. The Assistant United
States Attorney stood mute during the defense lawyer’s
exchange with the court concerning its consecutive sentence
and, when asked by the court, "[is there] anything the govern-
ment wants to bring to my attention," she simply replied: "No,
your Honor." J.A. 67. Pursuant to the Plea Agreement, Counts
One and Three were dismissed by the court and, on May 12,
2009, the judgment was entered accordingly.
On May 18, 2009, Lewis filed a timely notice of appeal.
We possess jurisdiction of his appeal pursuant to the provi-
sions of 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
C.
Five months after the appeal was filed, on October 16,
2009, Lewis’s lawyer filed an Anders brief with our Court,
expressing his belief that there were no meritorious issues to
present, but recommending that "the Court should consider"
whether the district court had erred in sentencing Lewis to a
consecutive term of imprisonment. Anders Br. of Appellant 8.4
4
See Anders v. California, 386 U.S. 738, 744 (1967) (instructing that,
if appointed counsel deems appeal to be wholly frivolous, he or she should
so advise court and request permission to withdraw, but accompany such
request with brief referring to anything in record that might arguably sup-
port appeal).
UNITED STATES v. LEWIS 7
The Anders brief discussed a previously undisclosed telecon-
ference of December 5, 2008 (the date of the Plea Agreement
and four days before the plea hearing) among the defense law-
yer, the prosecutor, and the judge, and asserted that the judge
had informed "counsel for Mr. Lewis and counsel for the
United States that even if the plea agreement was accepted by
the court, the sentencing agreement and any recommendations
would not be binding." Id. at 7-8. Such a conference is not
otherwise reflected in the record. Contemporaneous with the
Anders brief, Lewis’s lawyer sought to withdraw from this
appeal.
On November 9, 2009, in response to the Anders brief,
Lewis made a pro se supplemental submission to this Court,
asserting that "[t]he U.S. Attorney agreed in my plea that the
Federal sentence should [run] concurrent with my State Sen-
tence," and that "the only reason I took the plea is because I
was told it would [run] concurrent." Pro Se Br. of Appellant
1. On May 10, 2010, we granted the lawyer’s motion to with-
draw and appointed replacement counsel for Lewis. In a sub-
sequent order of the same date, we directed his new counsel
to pay "specific attention" to "whether the district court’s
imposition of a consecutive sentence was appropriate." United
States v. Lewis, No. 09-4467 (4th Cir. May 10, 2010). The
matter was thereafter briefed and argued, and it is now ripe
for decision.
II.
A.
When a claim of breach of a plea agreement has been pre-
served, "we review the district court’s factual findings for
clear error and its application of principles of contract inter-
pretation de novo." United States v. Dawson, 587 F.3d 640,
645 (4th Cir. 2009). Because a sentencing court’s failure to
comply with Rule 11 is evaluated under a harmless error stan-
dard, we will only vacate a sentence "if the trial court’s viola-
8 UNITED STATES v. LEWIS
tions of Rule 11 affect the defendant’s substantial rights."
United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995)
(internal quotation marks omitted); see also Fed. R. Crim. P.
11(h). We review an alleged error that was not properly pre-
served for plain error only. See United States v. Rooks, 596
F.3d 204, 210 (4th Cir. 2010).
B.
As a threshold matter, we must identify the proper standard
of review for Lewis’s sentencing contention. The government
maintains that his contention — that the consecutive sentence
contravened the Plea Agreement — is not reviewable at all or,
at most, subject to review for plain error only. On the other
hand, if Lewis’s sentencing contention was properly pre-
served, it must be reviewed for harmless error. The resolution
of this issue turns on the contents of the record of the sentenc-
ing hearing.
At sentencing, the district court specifically acknowledged
that, in imposing a consecutive sentence on Lewis, it was
doing so "over the defendant’s objection." J.A. 64. Indeed,
Lewis’s counsel sought to object again, but the court inter-
jected and advised that it was "very cognizant of the plea pro-
cess, and . . . it is unusual for me to not adhere to what was
agreed to, as it is not binding on the Court." Id. at 66.
On appeal, the government asserts that the lawyer’s state-
ment to the district court that the Plea Agreement was "not
binding" served to waive any objection to the consecutive
sentence and, thus, forecloses any appellate review. Although
Lewis’s lawyer might have explained his position more fully,
he was, in any event, quite correct. The court was not required
to run Lewis’s sentence concurrently; it was, as explained
below, entirely free to reject the Plea Agreement that it had
previously "conditionally accept[ed]." J.A. 44. Under the cir-
cumstances, Lewis sufficiently preserved his appellate con-
UNITED STATES v. LEWIS 9
tention, and it is properly reviewed for harmless — rather
than plain — error.
III.
In his appeal, Lewis contends that the concurrent sentence
provision was binding on the district court, pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure, if the
court accepted the Plea Agreement and his guilty plea on
Count Two.5 Lewis also contends that, when the sentencing
court implicitly rejected the concurrent sentence provision
and instead imposed a consecutive sentence, it was required,
pursuant to Rule 11(c)(5), to "give [him] an opportunity to
withdraw" his guilty plea.6 Lewis asserts that, because the
court did not accord him that opportunity, his sentence is
invalid and must be vacated. In response, the government
asserts that the sentencing court did not err, and that Lewis’s
sentence should be affirmed. The government maintains that
5
Rule 11(c)(1)(C) provides, in pertinent part, that "the plea agreement
may specify that an attorney for the government will . . . agree that a spe-
cific sentence . . . is the appropriate disposition of the case." The Rule
specifies that "such a recommendation or request binds the court once the
court accepts the plea agreement."
6
Rule 11(c)(5) spells out in detail the steps a sentencing court is obliged
to follow if it decides to reject a plea agreement:
If the court rejects a plea agreement containing provisions of the
type specified in Rule 11(c)(1)(A) or (C), the court must do the
following on the record and in open court (or, for good cause, in
camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not
required to follow the plea agreement and give the defendant an
opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not with-
drawn, the court may dispose of the case less favorably toward
the defendant than the plea agreement contemplated.
Fed. R. Crim. P. 11(c)(5).
10 UNITED STATES v. LEWIS
the parties never intended or understood the concurrent sen-
tence provision to be an agreement for a specific sentence
under Rule 11(c)(1)(C). Our resolution of this appeal thus
turns primarily on whether the concurrent sentence provision
constitutes an agreement for a specific sentence under Rule
11(c)(1)(C).
A.
The plea agreement process is an essential aspect of the
administration of criminal justice in our scheme of govern-
ment. Criminal defendants and the prosecuting authorities uti-
lize such agreements, as a matter of course, to dispose of the
vast majority of all federal criminal cases. As a result, the
courts have a vital interest in assuring that such agreements
are adhered to and handled properly. See United States v.
Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (discussing consti-
tutional and supervisory concerns implicated in plea agree-
ment process and judiciary’s interest in administration of
criminal justice).
A plea agreement is essentially a contract between an
accused and the government. See Puckett v. United States,
129 S. Ct. 1423, 1430 (2009). As a result, the interpretation
of a plea agreement "is rooted in contract law, and . . . each
party should receive the benefit of its bargain." United States
v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009) (internal quota-
tion marks omitted). It is elementary that, "when 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); see also Dawson, 587
F.3d at 645 (quoting Santobello); United States v. Gonczy,
357 F.3d 50, 53 (1st Cir. 2004) ("[A] defendant entering into
a plea agreement with the government undertakes to waive
certain fundamental constitutional rights; because of that
waiver, the government is required to meet the most meticu-
lous standards of both promise and performance." (internal
UNITED STATES v. LEWIS 11
quotation marks omitted)). The government is only bound,
however, by the promises that were actually made in inducing
a guilty plea. See Dawson, 587 F.3d at 645.
Our distinguished former colleague, Judge Donald Russell,
writing on the matter some fifteen years ago, explained the
principles governing plea agreements in the following terms:
"Because a defendant’s fundamental and constitutional rights
are implicated when he is induced to plead guilty by reason
of a plea agreement, our analysis of the plea agreement or
breach thereof is conducted with greater scrutiny than in a
commercial contract." United States v. McQueen, 108 F.3d
64, 66 (4th Cir. 1996). As a result, the government is held to
"a greater degree of responsibility than the defendant (or pos-
sibly than would be either of the parties to commercial con-
tracts) for imprecisions or ambiguities in plea agreements."
United States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004)
(internal quotation marks omitted). The breach of a promise
made to induce a defendant to enter a guilty plea — and
thereby waive important constitutional rights — harms not
only the defendant, but, as Judge Russell correctly empha-
sized, involves "the honor of the government, public confi-
dence in the fair administration of justice, and the effective
administration of justice in a federal scheme of government."
McQueen, 108 F.3d at 66 (internal quotation marks omitted);
see also United States v. Peglera, 33 F.3d 412, 414 (4th Cir.
1994) (Wilkinson, J.) ("Because a government that lives up to
its commitments is the essence of liberty under law, the harm
generated by allowing the government to forego its plea bar-
gain obligations is one which cannot be tolerated."). With
these principles in mind, we turn to the issue presented in this
appeal.
B.
1.
Rule 11 of the Federal Rules of Criminal Procedure gov-
erns the plea process in the federal courts, and, to properly
12 UNITED STATES v. LEWIS
assess this appeal, an understanding of Rule 11(c) (entitled
"Plea Agreement Procedure") is essential. First, Rule 11(c)(1)
identifies three types of inducements that can be included in
a plea agreement, and the distinctions between such induce-
ments is of vital importance. Under that provision, a "plea
agreement may specify that an attorney for the government
will" do the following:
(A) not bring, or will move to dismiss, other
charges [(commonly called a "type A provision")];
(B) recommend, or agree not to oppose the defen-
dant’s request, that a particular sentence or sentenc-
ing range is appropriate or that a particular provision
of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply (such a rec-
ommendation or request does not bind the court)
[(commonly called a "type B provision")]; or
(C) agree that a specific sentence or sentencing
range is the appropriate disposition of the case, or
that a particular provision of the Sentencing Guide-
lines, or policy statement, or sentencing factor does
or does not apply (such a recommendation or request
binds the court once the court accepts the plea agree-
ment) [(commonly called a "type C provision")].
Fed. R. Crim. P. 11(c)(1) (emphasis added); see also United
States v. Hyde, 520 U.S. 670, 675 (1997). Even if a sentenc-
ing court accepts a plea agreement, the court is not bound by
recommendations that are properly characterized as type B
provisions. On the other hand, if the court accepts a plea
agreement, it is thereby bound by any type A or type C provi-
sions that are contained therein.
Nevertheless, a district court is not obliged to accept a par-
ticular plea agreement between the government and an
accused, as it always has the authority to either accept or
UNITED STATES v. LEWIS 13
reject any agreement. See Fed. R. Crim. P. 11(c)(5); Wood,
378 F.3d at 348. If the court accepts a guilty plea, however,
and thereafter decides to reject the underlying plea agreement
that contains "provisions of the type specified in Rule
11(c)(1)(A) or (C)," it must, on the record, comply with Rule
11(c)(5). That is, the court must (1) advise the parties that it
is rejecting the plea agreement, (2) afford the defendant an
opportunity to withdraw his guilty plea, and (3) advise the
defendant that, if his plea is not withdrawn, he may be sen-
tenced more severely than contemplated by the plea agree-
ment.
2.
Moving to the government’s contention that the parties
never intended or understood the concurrent sentence provi-
sion to be a type C provision, that contention is readily
rejected. The concurrent sentence provision is drawn in man-
datory and plain terms — "[t]he parties agree that the sen-
tence of imprisonment shall be served concurrent with the
state sentence." Plea Agreement ¶ 5. As such, there is no sup-
port for the proposition that the concurrent sentence provision
was a mere recommendation to the sentencing court. The Plea
Agreement itself shows that the prosecutors knew how to
draft such a recommendation — Paragraph 6 of the Plea
Agreement relates to a "downward adjustment . . . for accep-
tance of responsibility" that was "not binding on the Court,"
and is therefore a type B provision containing a recommenda-
tion. Id. ¶ 6.
Notably, the judge actually signed the Plea Agreement after
the guilty plea was accepted, stating in the plea hearing and
on the face of the Plea Agreement that it was being "condi-
tionally approved." J.A. 44, 53. Such a conditional approval
provides strong support for the proposition that the Plea
Agreement was understood to contain a type C provision. See
Fed. R. Crim. P. 11(c)(3)(A) ("To the extent the plea agree-
ment is of the type specified in Rule 11(c)(1)(A) or (C), the
14 UNITED STATES v. LEWIS
court may accept the agreement, reject it, or defer a decision
until the court has reviewed the [PSR]." (emphasis added)).
After considering the PSR, however, the sentencing court
failed to expressly either accept or reject the Plea Agreement.
Unquestionably, however, the court implicitly withdrew its
conditional approval of the Plea Agreement by sentencing
Lewis to a consecutive sentence of forty-six months.
In rejecting the concurrent sentence provision, however, the
district court was obliged to afford Lewis an opportunity to
withdraw his guilty plea, and it erroneously failed to do so.
See Fed. R. Crim. P. 11(c)(5). As a corollary to this sentenc-
ing defect, it is surprising that the prosecutor failed to correct
the court’s misunderstanding of the concurrent sentence pro-
vision. The government had an affirmative duty to fulfill its
obligations under the Plea Agreement. As Judge Russell
explained in McQueen, the "Government’s failure to argue the
terms of the . . . plea agreement to the district court at the sen-
tencing hearing constitute[s] a breach [thereof]." See 108 F.3d
at 66.
The government’s contention that the parties actually
intended and understood the concurrent sentence provision to
be a mere recommendation is — put mildly — nearly frivo-
lous. Such an understanding runs counter to the plain and
express terms of the Plea Agreement.7 Indeed, we have
rejected similar contentions predicated on undocumented "un-
derstandings" or in conflict with the terms of a plea agree-
ment. See United States v. Cohen, 459 F.3d 490, 495 (4th Cir.
2006). The prosecutor drafted the Plea Agreement, and we
7
The foregoing contention is apparently predicated, at least to some
extent, on the alleged teleconference between counsel and the sentencing
judge, initially referred to in the Anders brief. We decline to consider the
alleged teleconference for several reasons: First, there is no indication in
the record that such a conference occurred; second, the Plea Agreement
constitutes the entire agreement; and finally, Rule 11(c)(1) provides "[t]hat
the court must not participate" in plea negotiations.
UNITED STATES v. LEWIS 15
have no basis for rewriting it to comport with what the gov-
ernment now desires it to mean.
Although a sentencing error occurred in this case, we will
not correct such an error if it was harmless. An error is harm-
less if we are able to say, with fair assurance, that it did not
affect the defendant’s substantial rights. See Fed. R. Crim. P.
11(h), 52(a); see also United States v. Brooks, 111 F.3d 365,
371 (4th Cir. 1997). "A defendant’s substantial rights are
affected if the error ‘affected the outcome of the district court
proceedings.’" Dawson, 587 F.3d at 645 (quoting Puckett,
129 S. Ct. at 1429). In these circumstances, Lewis did not
secure the benefit to which he was entitled under the concur-
rent sentence provision — a sentence that ran concurrently
with his state sentence — and the error affected his substantial
rights.8
IV.
Pursuant to the foregoing, we vacate the judgment and
remand for such other and further proceedings as may be
appropriate.
VACATED AND REMANDED
8
Finally, the government seeks dismissal of Lewis’s appeal on the basis
of the appeal waiver in the Plea Agreement. We will not enforce such a
waiver, however, when the government has failed to comply with its plea
agreement obligations. See Dawson, 587 F.3d at 644 n.4; Cohen, 459 F.3d
at 495. The concurrent sentence provision is a type C provision, and when
the district court rejected the Plea Agreement by imposing a consecutive
sentence, Lewis was entitled to an opportunity to withdraw his plea. See
Fed. R. Crim. P. 11(c)(5). The government’s obligation in that circum-
stance included the correction of the court’s misunderstanding about the
concurrent sentence provision. See McQueen, 108 F.3d at 66 ("The Gov-
ernment’s failure to argue the terms of the . . . plea agreement to the dis-
trict court at the sentencing hearing constitute[s] a breach [thereof].").
Thus, we decline to enforce the appeal waiver.