United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2170
___________________________
United States of America
Plaintiff - Appellee
v.
Carvon Brown
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: April 12, 2021
Filed: July 21, 2021
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
GRUENDER, Circuit Judge.
In a plea agreement, Carvon Brown and the Government stipulated to a
Sentencing Guidelines’ base offense level of 12. But the Government later endorsed
the Presentence Investigation Report’s (“PSR”) contrary base-offense-level
calculation of 20. The district court sentenced Brown to 72 months’ imprisonment
after adopting the PSR’s calculation. Brown appeals, arguing that the Government
breached the plea agreement. For the following reasons, we vacate Brown’s
sentence and remand for resentencing before a different district court judge.
I.
Pursuant to a plea agreement, Brown pleaded guilty to knowingly possessing
a stolen firearm. See 18 U.S.C. § 922(j). In the plea agreement, the parties agreed
that “[t]he applicable Guidelines section for the offense . . . is U.S.S.G.
§ 2K2.1(a)(7),” with “a base offense level of 12.” By contrast, the PSR calculated a
base offense level of 20. This disparity came from the PSR’s conclusion that Brown
was a prohibited person whose offense involved possessing a semiautomatic firearm
capable of receiving a large-capacity magazine. See § 2K2.1(a)(4)(B). Brown
objected to this. The Government did not, instead stating in its sentencing
memorandum that it “believe[d] that the range calculated by [the PSR] [was]
appropriate.”
At the first of two sentencing hearings, Brown again objected to the PSR’s
base-offense-level calculation, noting that it was higher than what the parties had
agreed to in the plea agreement. For its part, the Government acknowledged the plea
agreement’s lower calculation but nonetheless stated that the PSR’s calculation was
correct. The Government also volunteered that it “thought [Brown] was going to
have a hard time overcoming [the large] capacity magazine.” It then made “a
proffer” that the gun at issue had a seventeen-round magazine and “[o]bviously . . .
fit[] the definition” in § 2K2.1(a)(4)(B). Nonetheless, the Government told the court
that it was not currently prepared to prove § 2K2.1(a)(4)(B)’s applicability,
prompting the district court to postpone the hearing.
At the second sentencing hearing, after a witness established that the gun had
a large-capacity magazine, the Government again agreed with the PSR calculation.
When asked if it had a sentencing recommendation, the Government stated:
-2-
I would ask you to stick to the plea agreement. . . . [D]efense
counsel . . . believe[s] it may possibly be a breach of the plea agreement
on my part if I argue for the higher guideline sentence than what I had
argued for in the plea agreement. So because of that, Judge, I told
[defense counsel] that I will stand silent when it comes to a
recommendation, because he believes it possibly may be a breach of
the plea agreement. I don’t think it would be, but be that as it may . . . .
In response, defense counsel argued that the Government had breached the plea
agreement by filing a sentencing memorandum endorsing the PSR’s calculations.
Without expressly deciding the issue, the court seemingly concluded that the
Government had not breached.
Ultimately, the district court overruled Brown’s objection, adopted the PSR’s
calculation, and sentenced Brown to 72 months’ imprisonment. Brown appeals,
arguing that the Government breached the plea agreement.
II.
At the outset, the Government argues that we must dismiss Brown’s appeal
because he waived his right to appeal in the plea agreement. Not so. “If the
government breached the plea agreement, [the defendant] may proceed with his
appeal despite the appellate waiver.” United States v. Pierre, 912 F.3d 1137, 1142
(8th Cir. 2019) (internal quotation marks omitted). Accordingly, “the appeal waiver
does not prevent us from reviewing [the] claim that the plea agreement was
breached.” See United States v. Lewis, 673 F.3d 758, 761 (8th Cir. 2011).
The Government also argues that, even if the appeal waiver does not prevent
us from reaching the merits, we are limited to plain-error review because Brown
forfeited his argument. “[A] party forfeits a merits review by failing to object,” in
which case we “conduct plain error review.” United States v. Campbell, 764 F.3d
874, 878 (8th Cir. 2014). Although the Government acknowledges that Brown’s
counsel expressly argued that it had breached the plea agreement, the Government
-3-
nonetheless maintains that this was insufficient to preserve the issue because Brown
did not specifically ask for relief. The Government demands too much.
True, we have said in dicta that “[w]ithout an objection and a proper request
for relief, the matter is waived.” See United States v. Allmon, 500 F.3d 800, 806 (8th
Cir. 2007); United States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003); McKnight ex
rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir. 1994); Owen v.
Patton, 925 F.2d 1111, 1115 (8th Cir. 1991). But we are not bound by dicta.
McIntyre v. Reliance Standard Life Ins. Co., 972 F.3d 955, 963 (8th Cir. 2020). And
we have never held that an objection must be accompanied by a request for relief to
preserve an issue for appellate review.
Rather, we have held that “[t]o preserve an error for appellate review, an
objection must be timely and must clearly state the grounds for the objection.”
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) (brackets and
internal quotation marks omitted); see also United States v. Johnson, 710 F.3d 784,
788 (8th Cir. 2013) (explaining that a specific and timely objection preserves the
issue). For example, in United States v. Fowler, we found the issue preserved
because the defendant “raised the issue of the plea agreement in his objections to the
PSR, and dedicated a good deal of his subsequent sentencing memorandum to his
assertion that the government was in breach by advocating for a sentence different
than as stated in the plea agreement.” 445 F.3d 1035, 1037 n.2 (8th Cir. 2006). We
said nothing about whether the defendant also sought specific relief.
The Supreme Court’s decision in Puckett v. United States, 556 U.S. 129
(2009), also rebuts the Government’s view. There, in considering whether the
defendant had forfeited his plea-agreement-breach claim, the Supreme Court held
that a litigant “must object in order to preserve the issue.” Id. at 133-34. It further
explained that, in such cases, “Rule 51(b) tells parties how to preserve claims of
error: ‘by informing the court—when the court ruling or order is made or sought—
of the action the party wishes the court to take, or the party’s objection to the court’s
action and the grounds for that objection.’” Id. at 135. Here, Brown argued
-4-
expressly at sentencing that the Government had breached the plea agreement. This
was sufficient to apprise the district court of Brown’s “objection . . . and the grounds
for that objection.” See id.
Thus, we review Brown’s claim de novo. See United States v. E.V., 500 F.3d
747, 751 (8th Cir. 2007).
“When the offense level is part of the inducement or consideration for
pleading guilty, the government breaches a plea agreement by advocating a higher
offense level than that specified in the agreement.” United States v. Lovelace, 565
F.3d 1080, 1087 (8th Cir. 2009). In Lovelace, the plea agreement stipulated to a
base offense level of 20 under one guidelines provision. Id. at 1083. The PSR
calculated a base offense level of 24 under a different guidelines provision. Id. And
at the sentencing hearing, the government told the district court that the PSR
calculation was “correct.” Id. at 1083-84. Applying plain-error review (a more
challenging standard for the appellant than we apply here), we concluded based on
this statement that the government had breached the plea agreement. Id. at 1087.
So too here. In the plea agreement, the Government agreed to a base offense
level of 12 under § 2K2.1(a)(7). Yet, in its sentencing memorandum, it said that the
PSR’s base offense level of 20 under § 2K2.1(a)(4)(B) was “appropriate.” In doing
so, the Government advocated for a different applicable guidelines section and
higher base offense level than it had agreed to, thus breaching the plea agreement.
See Lovelace, 563 F.3d at 1087; Fowler, 445 F.3d at 1036-38 (holding that the
government had breached a plea agreement in part by advocating for the PSR’s
higher-than-agreed-to offense-level calculation in its sentencing memorandum).
The Government seems to argue that it cured any such breach because, at the
end of the second sentencing hearing, it told the district court to “stick to the plea
agreement.” But the Government cites no case where we have held that it may cure
the breach of a plea agreement, and we are unaware of any.
-5-
Even assuming “a cure is possible,” other “circuits require that the
government offer an ‘unequivocal retraction’ of its erroneous position to sufficiently
cure a breach.” United States v. Ligon, 937 F.3d 714, 720 (6th Cir. 2019). The
Government’s conduct here is a far cry from an “unequivocal retraction.” In the
same breath as telling the district court “to stick to the plea agreement,” the
Government maintained that it was allowed to argue for a higher-than-agreed-to
calculation. See United States v. Boatner, 966 F.2d 1575, 1579 (11th Cir. 1992)
(rejecting, in a plea-breach case, the government’s “attempts to hide behind its
statement” that it would “stick to” the agreement when its actions indicated the
opposite). And it made clear that the only reason it was not arguing for a higher-
than-agreed-to sentence was because defense counsel had claimed it would
constitute a breach.
Further, although the Government boasts that it “scrupulously adhered to the
plea agreement,” its conduct even aside from the sentencing memorandum tells a
different story. For example, at the first sentencing hearing, the Government
“proffer[ed]” facts establishing a higher base offense level than the plea agreement
stipulated and essentially invited the district court to go on a fishing expedition for
additional supporting facts. United States v. Thompson, 403 F.3d 1037, 1040 (8th
Cir. 2005) (finding breach in similar circumstances). And at both the first and
second sentencing hearings, the Government endorsed the PSR’s higher-than-
agreed-to calculation. See Lovelace, 565 F.3d at 1087 (finding breach in similar
circumstances). This conduct was hardly the meticulous fidelity to the plea
agreement we require. Cf. E.V., 500 F.3d at 751 (explaining that the federal
government’s breach of a plea agreement “violates due process” and threatens “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”).
In sum, even assuming that the Government could cure its breach, its half-
hearted and begrudging statement that the district court should follow the agreement
was not enough—especially taking a holistic view of the Government’s plea-related
conduct. See United States v. Munoz, 408 F.3d 222, 224-25, 228 (5th Cir. 2005)
-6-
(concluding that a prosecutor’s request for the district court to follow the plea
agreement, after he had already advocated otherwise, “amounted to little more than
lip service . . . and did not rectify the breach”).
III.
Accordingly, we vacate Brown’s sentence and remand for resentencing before
a different district court judge. See Thompson, 403 F.3d at 1041 (doing the same).
We make clear that this reassignment in no way questions the fairness of the
sentencing judge. Id.
______________________________
-7-