United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2153
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Sean Tyree Lewis, *
*
Appellant. *
___________
Submitted: April 15, 2011
Filed: May 27, 2011
___________
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
___________
GRUENDER, Circuit Judge.
In 2005, Sean Lewis pled guilty to being a felon in possession of a firearm, a
violation of 18 U.S.C. § 922(g)(1). As part of the plea agreement, the Government
agreed that “[t]he defendant, the defendant’s attorney, and the Government attorney
may make whatever comment and evidentiary offer they deem appropriate at the time
of the guilty plea, sentencing, or any other proceeding related to this case.” The
district court accepted the plea agreement and “agree[d] to be bound by that
agreement.” The court then sentenced Lewis to 120 months’ imprisonment, to run
consecutively with a separate 30 month sentence imposed upon revocation of his
supervised release arising from an earlier conviction.
In 2009, the Government filed a Fed. R. Crim. P. 35(b) motion to reduce
Lewis’s sentence due to his “substantial assistance in the investigation and
prosecution of other individuals who have committed criminal offenses.” The motion
briefly discussed the assistance that Lewis had provided, including testifying for the
State of Illinois in the first-degree murder trial of Marcus Northern. It also noted that
Lewis had “indicated that his family has been threatened by associates of Mr.
Northern due to [Lewis’s] testimony against him.” Based on these considerations, the
Government recommended that Lewis’s sentence be reduced by 24 months, a 20
percent reduction. On November 10, 2009, a telephonic hearing was held on the Rule
35(b) motion. Lewis did not participate in the hearing, nor was he even aware that the
motion had been filed. However, Lewis’s counsel participated in the hearing and did
not object to Lewis’s absence. The Government urged the court to grant only the 20
percent reduction it had recommended because Lewis is “a rather notorious thug”
whose offense was “extremely egregious.” Lewis’s counsel largely agreed that the
Government had not “misrepresented any of the facts concerning Mr. Lewis.”
Although counsel indicated that he had “not spoken to Mr. Lewis,” he ventured that
“he would want [a] 50 percent [decrease] if he were here to speak for himself.” The
district court granted the 24-month reduction recommended by the Government.
Almost two months later, Lewis learned that the Rule 35(b) hearing had been
held in his absence. Dissatisfied with the 24-month reduction and upset that he had
not been notified of the hearing, Lewis filed a pro se motion complaining of “bad
faith” on the part of the Government and requesting a new Rule 35(b) hearing in
which he could participate. However, Lewis did not mention his plea agreement in
this motion or specifically argue that the agreement granted him a right to participate
in the Rule 35(b) hearing. The district court denied Lewis’s motion. Lewis now
appeals, arguing that the Government breached the plea agreement by allowing the
hearing to go forward in his absence and thereby depriving him of his contractual right
to “make whatever comment and evidentiary offer [he] deem[s] appropriate at . . . any
. . . proceeding related to [his] case.”
-2-
“This court is without jurisdiction to review Rule 35(b) sentences unless one
of four criteria are met under 18 U.S.C. § 3742(a).” United States v. Williams, 590
F.3d 579, 580 (8th Cir. 2009). These four criteria are: “(1) the sentence was imposed
in violation of law, (2) the sentence was imposed using an incorrect application of the
sentencing guidelines, (3) the sentence is greater than the applicable guidelines range,
or (4) the sentence is imposed for an offense without a sentencing guideline and is
plainly unreasonable.” Id. (citing 18 U.S.C. § 3742(a)(1)-(4)). Lewis claims that he
was denied the right to participate in the hearing in violation of his plea agreement.
“Allowing the government to breach a promise that induced a guilty plea violates due
process.” United States v. Jensen, 423 F.3d 851, 854 (8th Cir. 2005). Accordingly,
because Lewis claims that his sentence was “imposed in violation of law,” his Rule
35(b) sentence is subject to review under § 3742(a)(1).
The Government asserts that review of Lewis’s claim nevertheless is foreclosed
by the appeal waiver included in Lewis’s plea agreement, which provides that:
The Defendant hereby knowingly and expressly waives any and all rights
to appeal Defendant’s conviction in this case, including a waiver of all
motions, defenses and objections which Defendant could assert to the
charges or to the Court’s entry of judgment against Defendant, and any
and all issues inhering therein . . . .
We agree with the Government that this appeal attacks “the Court’s entry of judgment
against Defendant” and is within the scope of the appeal waiver. However, “[i]f the
government breaches the plea agreement, . . . the plea agreement is no longer
enforceable as before against the defendant.” United States v. Lovelace, 565 F.3d
1080, 1085 (8th Cir. 2009). Therefore, we conclude that the appeal waiver does not
prevent us from reviewing Lewis’s claim that the plea agreement was breached.
However, because Lewis did not specifically raise his claim of breach in the
district court, either through his attorney at the Rule 35(b) hearing or in his pro se
-3-
motion, our review is only for plain error. See id. at 1086 (“[W]hen a defendant seeks
to avoid an appellate waiver contained in a plea agreement by arguing, for the first
time on appeal, that the government breached the plea agreement, this court will
review the forfeited claim (and related claims) under the plain error test.”).1 To
prevail under plain error review, Lewis must show “(1) an error, (2) that was ‘plain,’
[and] (3) ‘affects substantial rights,’ and [that] (4) ‘the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.’” United States v.
Rush-Richardson, 574 F.3d 906, 910 (8th Cir. 2009) (quoting Olano, 507 U.S. at 735-
36).
The plea agreement in this case provides that “[t]he defendant, the defendant’s
attorney, and the Government attorney may make whatever comment and evidentiary
offer they deem appropriate at the time of the guilty plea, sentencing, or any other
proceeding related to this case.” Lewis asserts that the plain language of this clause
granted him the right to participate in the Rule 35(b) hearing. The Government
1
The Government contends that because Lewis did not object to the alleged
breach of his plea agreement, either through his counsel or in his pro se motion, he has
affirmatively waived any right to participate in the Rule 35(b) hearing. The
Government cites United States v. Gunter, 631 F.2d 583, 589 (8th Cir. 1980), as
holding that counsel may waive a defendant’s right to participate in a proceeding by
failing to object to the defendant’s absence. Gunter predates the Supreme Court’s
decision in United States v. Olano, 507 U.S. 725 (1993), which clarified the
distinction between waiver and forfeiture. While forfeiture of a right arises from a
“failure to make the timely assertion of [the] right” and limits appellate review to plain
error, id. at 733, waiver is the “intentional relinquishment or abandonment of a known
right,” id., and a waived claim is unreviewable on appeal. Any suggestion in Gunter
that counsel may waive, as opposed to forfeit, a defendant’s right to be present merely
by failing to object to the defendant’s absence does not survive Olano. As neither
Lewis nor his counsel even mentioned that Lewis’s plea agreement may have granted
him a right to participate in the Rule 35(b) hearing, the record does not support the
proposition that Lewis or his counsel intentionally relinquished or abandoned a known
right. Thus, we reject the Government’s waiver argument.
-4-
responds that it never intended to give Lewis such a right and that “[t]he parties’ intent
in agreeing to [this clause] must have been that the absolute right to be heard would
only be preserved where a right to be heard already existed.” Since a defendant has
no independent right to participate in a Rule 35(b) hearing, see Williams, 590 F.3d at
580, the Government contends that there was no violation of the plea agreement.
The Government’s assertion that it never intended to give Lewis the right he
asserts is unavailing unless its subjective intent is reflected in the plain language of
the agreement. See United States v. Martinez-Noriega, 418 F.3d 809, 815 (8th Cir.
2005) (“When a dispute arises over the meaning of a plea agreement, the court must
‘discern the intent of the parties as expressed in the plain language of the agreement
when viewed as a whole.’” (quoting United States v. Taylor, 258 F.3d 815, 819 (8th
Cir. 2001))). As an interpretation of the plea agreement’s language, the Government’s
proffered reading is unpersuasive. Interpreting the clause in question to guarantee a
right to participate only where such a right already exists by law would make the
clause mere surplusage. “Plea agreements are contractual in nature and should be
interpreted according to general contractual principles,” Jensen, 423 F.3d at 854, and
it is a familiar principle of contractual interpretation that “contracts must be
interpreted to give effect to every provision,” Keymer v. Mgmt. Recruiters Int’l, Inc.,
169 F.3d 501, 505 (8th Cir. 1999).
We conclude that the plain language of the plea agreement guaranteed Lewis
the right to participate in the Rule 35(b) hearing. By its terms, the plea agreement
gives Lewis the right to make comments or present evidence at “any . . . proceeding
related to this case.” A Rule 35(b) hearing plainly is a “proceeding related to this
case,” and the right to make comments or present evidence at a proceeding necessarily
encompasses the right to participate in that proceeding. By allowing the Rule 35(b)
hearing to go forward without giving Lewis the opportunity to participate, the
Government and the district court violated the plea agreement by which both had
agreed to be bound. Consequently, the sentence imposed following the hearing was
-5-
arrived at through a violation of Lewis’s due process rights, see Jensen, 423 F.3d at
854, and imposed in violation of law, see 18 U.S.C. § 3742(a)(1).
Further, we conclude that this error was plain. As just discussed, the plain
language of the plea agreement granted Lewis the right to participate in the Rule 35(b)
hearing. The Government’s suggestion that the plea agreement only grants a right to
participate where such a right already exists by law is at odds with the language of the
agreement and renders the clause in question a nullity. Moreover, even if the
Government’s proposed interpretation were plausible, it at most would show that the
plea agreement is susceptible of two interpretations and therefore ambiguous. “Where
a plea agreement is ambiguous, the ambiguities are construed against the
government.” Jensen, 423 F.3d at 854. Thus, even if the language of the plea
agreement did not foreclose the Government’s interpretation beyond all doubt, the
district court was bound to construe the agreement against the Government as
guaranteeing Lewis’s right to participate in the Rule 35(b) hearing. By going forward
with the hearing in violation of this right, the court committed an error that is “clear”
or “obvious.” See Olano, 507 U.S. at 734.
Moreover, we hold that Lewis has met his burden of showing that this error
affected his substantial rights. Lewis’s counsel at the Rule 35(b) hearing did not
provide the district court with significant information that Lewis claims he could have
provided had he participated. While the Government and Lewis’s counsel only
mentioned one prosecution in which Lewis had cooperated, Lewis’s pro se motions
suggest that he had cooperated in the investigation or sentencing of at least fifteen
other individuals. Further, while the Government’s motion cited Lewis’s claim that
his family had been threatened due to some of his testimony, the court noted that “I
don’t have much to go on with regard to that,” indicating that the court was interested
in the threats against Lewis’s family and desirous of further information concerning
the incident. Neither the Government nor Lewis’s counsel was able to enlighten the
court further on the matter, but Lewis claims he would have been able to provide the
-6-
court with the information it sought regarding the threats against his family. Given
the significance of this additional information as well as the district court’s
demonstration of interest in the threats against Lewis’s family, we conclude that Lewis
has shown “a reasonable probability that, but for [the error claimed], the result of the
proceeding would have been different.” See United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004) (alteration in original) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)).
Finally, the error “seriously affects the fairness, integrity or public reputation
of judicial proceedings.” See Rush-Richardson, 574 F.3d at 910 (quoting Olano, 507
U.S. at 736). Allowing the Government to breach a plea agreement, especially one
by which the district court agreed to be bound, implicates “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.” See United States v.
Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005) (quoting United States v. Harvey, 791
F.2d 294, 300 (4th Cir. 1986)). Accordingly, we exercise our discretion to notice the
forfeited error.
For the foregoing reasons, we hold that Lewis has carried his burden of showing
that the denial of his contractual right to participate in the Rule 35(b) hearing
constitutes plain error. Therefore, we vacate Lewis’s conviction and remand to the
district court for a new Rule 35(b) hearing in which Lewis is allowed to participate.
COLLOTON, Circuit Judge, dissenting.
The court concludes that the district court made an obvious error that affected
the substantial rights of Sean Lewis and seriously affected the fairness, integrity, or
public reputation of judicial proceedings. What actually happened is far less dramatic
and does not warrant reversal.
-7-
A defendant has no right under the Federal Rules of Criminal Procedure or the
Constitution to be present at a hearing that involves the reduction of sentence under
Rule 35(b). Fed. R. Crim. P. 43(b)(4); United States v. Webb, 565 F.3d 789, 795 (11th
Cir. 2009); see United States v. Williams, 590 F.3d 579, 580 (8th Cir. 2009) (“This
court has never held that a Rule 35(b) defendant has the right to an opportunity to be
heard.”). Nonetheless, the court reasons that the government promised in a plea
agreement with Lewis that he would have a “right to participate in the hearing.” Ante,
at 3. The court observes that “[a]llowing the government to breach a promise that
induced a guilty plea violates due process,” id. (internal quotation omitted), and then
concludes that “[b]y allowing the Rule 35(b) hearing to go forward without giving
Lewis the opportunity to participate,” the government breached the agreement. Ante,
at 5.
There are two principal difficulties with this rationale. The first is that under
the applicable plain-error standard of review, the government’s alleged promise must
be clear, and it is not. The provision in question states as follows:
10. Evidence at Sentencing. The defendant, the defendant’s attorney,
and the Government attorney may make whatever comment and
evidentiary offer they deem appropriate at the time of the guilty plea,
sentencing, or any other proceeding related to this case, provided such
offer or comment does not violate any other provision of this agreement.
The parties are also free to provide all relevant information to the U.S.
Probation Office for use in preparing a presentence report.
This paragraph is ambiguous. Lewis contends that it grants him a new right to
be present at proceedings even when the rules provide that he need not be present.
But it could also mean, as the government argues, that at those proceedings where
Lewis already has a right to be present, he and his attorney are free to make whatever
comment or evidentiary offer they deem appropriate. The agreement, after all, does
not speak of a right to be present, but only of a right to make comments and
-8-
evidentiary offers, thus implying that the clause may concern only proceedings at
which the defendant already will be present without regard to the agreement. This
construction is consistent with the title of the paragraph, “Evidence at Sentencing,”
which refers to a proceeding at which the defendant’s presence is required and at
which the rules provide for the presentation of evidence. Fed. R. Crim. P. 43(a)(3),
32(i)(2). The government could have done a better job of drafting, but its
interpretation is not unreasonable.
The court rejects the government’s interpretation because it would make the
disputed clause “mere surplusage.” But this approach views one aspect of the clause
in isolation and overlooks the context in which it appears. The clause itself
undoubtedly includes surplusage. The defendant already has a right to present
“evidence at sentencing,” and to make whatever comment he deems appropriate at
sentencing. Fed. R. Crim. P. 32(i)(2), (4). The very next sentence in the agreement
says that “[t]he parties are also free to provide all relevant information to the U.S.
Probation Office for use in preparing a presentence report.” This includes surplusage;
the defendant and his attorney already have a right to provide such information. See
Fed. R. Crim. P. 32(c)(2). The next paragraph states that “the parties are free to
espouse their respective positions at sentencing” about issues relating to fines and
costs of incarceration. This is mere surplusage; Lewis and the government already
have a right to be present at sentencing and to espouse their positions on fines and
costs. Fed. R. Crim. P. 32(i)(1)(C), 32(i)(4)(A), 43(a)(3). There is no question that
the agreement recounts some rights that already exist. It is not unreasonable to
construe as one such instance the reference in paragraph 10 to the defendant’s right
to make comments and offers of evidence.
Because the agreement is unclear, the district court did not commit a clear and
obvious error by failing to adopt, sua sponte, Lewis’s present interpretation. The
court says alternatively that the district court made a plain error because it should have
identified the disputed clause on its own initiative and construed it in Lewis’s favor,
-9-
under the rule that ambiguous instruments are construed against the drafter. In
Puckett v. United States, 129 S. Ct. 1423 (2009), however, the Supreme Court said
that “the second prong of plain-error review . . . will often have some ‘bite’ in plea-
agreement cases,” because “[n]ot all breaches will be clear or obvious.” Id. at 1433.
The Court recognized what is evident here: “Plea agreements are not always models
of draftsmanship, so the scope of the Government’s commitments will on occasion be
open to doubt.” Id. This discussion in Puckett would be meaningless, and the second
prong toothless, if a rule of construing doubtful provisions against the government
made debatable breaches into plain errors.
There is a second problem with the court’s analysis. Even under Lewis’s
construction of the ambiguous clause, the government did not breach the agreement.
The plea agreement did not make the government a guarantor of Lewis’s presence or
participation at any proceeding. At most, the agreement gave Lewis the option to
make whatever comment or evidentiary offer he deemed appropriate. The government
did not resist any contention by Lewis that he should be present; Lewis’s attorney
himself did not object to completing the Rule 35(b) proceeding based on the
arguments of counsel. The government did not obviously breach the plea agreement
by failing to object to defense counsel’s failure to object.
The court states almost in passing that the district court also “violated the plea
agreement” by “allowing the Rule 35(b) hearing to go forward without giving Lewis
the opportunity to participate.” Ante, at 5. The court cites no authority that parties to
a criminal case can, through a sentence appearing in the midst of a 12-page, 32-
paragraph plea agreement, bind a district court to treat the Federal Rules of Criminal
Procedure as amended, and then establish a constitutional violation if the court
follows the actual rules. By contrast, when the court is bound by a plea agreement to
dismiss charges, or to impose a specific sentence, there is a procedure for clear notice
to the court and considered acceptance of the agreed disposition. See Fed. R. Crim.
P. 11(c)(4), 11(c)(1)(A), (C). In any event, the agreement here was ambiguous for the
-10-
district court too – the parties certainly never informed the court clearly that they
intended to modify the provision of Rule 43(b)(4) concerning the defendant’s
presence – and it was not an obvious error for the court to proceed in the normal
course when Lewis’s counsel raised no objection.
I would affirm the judgment of the district court.
______________________________
-11-