United States of America v. OYTON A. WILLIAMS On Appeal from the United States District Court for the District…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4153
UNITED STATES OF AMERICA,
Appellant
v.
OYTON A. WILLIAMS
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 05-cr-00270)
District Judge: Hon. Joseph A. Greenaway, Jr.
Argued September 18, 2007
Before: SLOVITER, SMITH and WEIS, Circuit Judges
(Filed December 31, 2007)
Christopher J. Christie
United States Attorney
Newark, New Jersey 07102-2535
George S. Leone (Argued)
Chief, Appeals Division
Newark, New Jersey 07102-2535
Attorneys for Appellant

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2
Frank P. Arleo (Argued)
Jo Ann K. Dobransky
Arleo & Donohue, L.L.C.
West Orange, New Jersey 07052
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This appeal raises an issue that we have not previously
decided: what standard should be applied when analyzing a
claim that a defendant has breached a plea agreement.
I.
Oyton Williams, who was charged by the United States
with knowingly and intentionally possessing with intent to
distribute fifty grams or more of cocaine base in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2, pled guilty
pursuant to a written plea agreement. The plea agreement stated,
inter alia, that neither party would argue for an upward or
downward departure not specified in the agreement. According
to the Pre-Sentence Report (“PSR”) prepared by the United
States Probation Office, Williams’ United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) range for the offense of
conviction was 168-210 months imprisonment. At sentencing,
Williams’ counsel argued for downward departures. The Court
granted the request and imposed a sentence of 120 months
imprisonment. The government appeals Williams’ sentence,
arguing that his requests for downward departures breached his
promises set forth in the plea agreement.
A.
Procedural Background
On April 23, 2004, following surveillance and receipt of

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1 Under 18 U.S.C. § 924(c)(1)(A)(i), “any person who,
during and in relation to any . . . drug trafficking crime . . . , uses
or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided
for such . . . drug trafficking crime[,] be sentenced to a term of
imprisonment of not less than 5 years.”
Under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the possession
of a firearm by a person previously convicted of a felony is
3
information provided by a confidential informant, federal and
state officers approached Williams in Newark, New Jersey, as he
was parking his automobile. As the law enforcement officers
prepared to search Williams, he told them that he had cocaine
stored inside his vehicle. Following appraisal of his Miranda
rights, Williams gave the officers consent to search not only the
vehicle but also his home, telling them that they would find
cocaine and a gun in a locked bedroom closet. Officers
recovered a quantity of cocaine from the car and, on searching
his home, found a large quantity of cocaine, a .32 caliber
handgun, additional ammunition and assorted drug packaging
material from a locked closet in the children’s room. A
laboratory report concluded that 306.49 grams of cocaine base
were recovered from Williams.
Williams waived his right to indictment, and the United
States filed an information against him in the United States
District Court for the District of New Jersey. On March 22,
2005, Williams executed a written plea agreement with the
government. He agreed that he would enter a guilty plea to a
one-count information charging him with possession with intent
to distribute fifty grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A). The government agreed
not to bring further criminal charges in connection with the
instant offense (thereby foreclosing potential charges relating to
his possession of a firearm in connection with a drug trafficking
crime, possession of a firearm by a convicted felon, and his
previous felony conviction) that could have increased Williams’
statutory minimum from ten years for the one-count information
to twenty-five years. 1

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punishable by up to ten years imprisonment.
Under 21 U.S.C. § 841(b)(1)(A), the statute governing
Williams’ charged offense, the defendant is subject to a mandatory
minimum term of imprisonment of ten years. If, however, the
defendant commits a violation under section 841 “after a prior
conviction for a felony drug offense,” the defendant will be subject
to a mandatory minimum term of imprisonment of twenty years.
Therefore, under the relevant statutes, the government could
have sought punishment of at least twenty-five years imprisonment
for Williams.
4
Schedule A of the plea agreement set forth the parties’
agreement and a proposed calculation of Williams’ sentence
under the Guidelines. Paragraph 1 stated:
This Office and Williams recognize that the United States
Sentencing Guidelines are not binding upon the Court.
This Office and Williams nevertheless agree to the
stipulations set forth herein, and agree that the Court
should sentence Williams within the Guidelines range
that results from the total Guidelines offense level set
forth below. This Office and Williams further agree that
neither party will argue for the imposition of a sentence
outside the Guidelines range that results from the agreed
total Guidelines offense level.
App. at 30 (emphasis added). Paragraph 2 stipulated that the
applicable Guidelines Manual was that which took effect on
November 5, 2003.
The parties then stipulated that because the amount of
cocaine base involved in Williams’ offense was 306.49 grams,
his base offense level would be 34 under U.S.S.G. § 2D1.1(c)(3).
Second, they stipulated that the two-level increase under
U.S.S.G. § 2D1.1(b)(1) applied because Williams possessed the
above-noted firearm in connection with the offense. Third, they
agreed that a three-level reduction under U.S.S.G. § 3E1.1
applied because Williams had accepted responsibility. Thus, the

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5
plea agreement set forth that Williams’ “agreed total Guidelines
offense level” was 33.
Williams and the government then agreed “not to seek or
argue for any upward or downward departure or any upward or
downward adjustment not set forth herein. The parties further
agree that a sentence within the Guidelines range that results
from the agreed total Guidelines offense level of 33 is
reasonable.” App. at 31.
Williams pled guilty on April 13, 2005. The Court
advised him as it took the plea that “until a presentence report is
completed, it is impossible for either the Court or your attorney
to know precisely what sentence range will be prescribed by the
guidelines[.]” App. at 52.
The PSR calculated Williams’ total offense level to be at
33, just as the plea agreement had calculated. It also concluded
that Williams had a criminal history category of III, based upon
a 1992 drug conviction in county court at age twenty-two, a
1995 charge in Newark municipal court on resisting arrest that
resulted in a suspended sentence, and a 2003 charge in Newark
municipal court that also resulted in a suspended sentence.
Those three offenses gave him two points each, resulting in six
points total, which produced a criminal history category of III.
Under the Sentencing Guidelines then in effect, a criminal
history category of III, combined with the total offense level of
33, resulted in a guideline range of 168-210 months
imprisonment. The Probation Office identified no factors
warranting departure from the Guideline range. Williams filed
no objections to the PSR.
B.
Sentencing
Williams’ sentencing was scheduled for August 2, 2005.
On July 26, 2005, his counsel filed Williams’ sentencing
memorandum. Although Williams stated he did not dispute the
suggested offense level of 33, he argued that he should be treated

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2 Chapter 5 delineates potentially applicable offender
characteristics that may provide a basis for such a departure (so-
called “Chapter 5 Departure”).
6
like a category II offender, rather than a category III offender.
He asserted that U.S.S.G. § 4A1.3 supported downward
departures for overrepresentation of criminal history and argued
that his 1992 conviction, which occurred when he was twenty-
two, was over a decade old, and that the two subsequent
convictions were “relatively minor.”
In addition, although Williams conceded that the
Guideline range was 168 to 210 months imprisonment, he
requested the District Court to depart downwardly from that
range pursuant to U.S.S.G. Chapter 5.2 To justify this departure,
he pointed to the following factors: his serious illness with
diabetes; the fact that his wife was also charged in connection
with the offense; that he was a married father who supported
three children; and that he was from a broken home and lacked
guidance as a child.
Finally, in Williams’ sentencing memorandum he argued
for a variance under Booker and the factors set forth in 18
U.S.C. § 3553(a), asserting that, considering his relatively minor
criminal history, his young children, the fact that he was
formerly gainfully employed, and that he suffers from diabetes,
“a more reasonable sentence is one below the heartland range
and one more in line with the statutory mandatory minimum
10-year range.” App. at 70-71.
In response, the government filed a sentencing letter
noting that “[n]otwithstanding the stipulation to the contrary
made by the defendant, the defendant filed a sentencing memo
requesting a downward departure.” App. at 75. It argued that
the bases for Williams’ requests for downward departures were
untenable, noting that under the Guidelines lack of guidance as a
youth or family ties are not relevant sentencing factors. The
government also stated that section 3553(a) “militate[s for] a
sentence within the stipulated guideline range,” and that
“[a]ccordingly, the defendant should be sentenced to at least 168

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7
months in prison.” App. at 77.
At the August 2, 2005 sentencing, Williams, through
defense counsel, again raised an argument about his criminal
history category. The District Court agreed with Williams’
argument. It ruled that “[t]he defendant’s motion, pursuant to
4A1.3, is granted,” App. at 10, and that the Court would “grant a
downward departure” reducing Williams “from a criminal
history category three to a criminal history category two.” App.
at 12. In doing so, the Court “dismissed” the two “municipal
court matters,” noting that one was approximately ten years old
and the other two years old, and that they resulted in minor fines
with no jail time assigned. App. at 10-11. As a result of the
District Court’s ruling that Williams’ criminal history category
overrepresented the seriousness of his criminal history or
likelihood he would commit other crimes, Williams’ guideline
range was reduced from 168-210 months to 151-188 months
imprisonment.
The Court then recognized that Williams was “seeking
other downward departures,” and acknowledged that the plea
agreement included a commitment by Williams not to seek a
downward departure. App. at 12. Williams’ counsel argued that
“if Booker says anything, I think what it did was give back to the
courts the ability to say, well, I understand the guidelines that are
now advisory, this is the heartland, this is where he’d be.” App.
at 14. Counsel continued, arguing that in a post-Booker world
the Court could “put everything into the hopper, things that
normally couldn’t be considered under the guidelines, such as
the health, the family ties and responsibilities . . . now Booker
requires the Court to do a reasonableness analysis, when you
consider those things, you can depart even though we stipulated
it.” App. at 15.
In response, the Assistant United States Attorney argued
that Williams did not deserve a downward departure. He
actually had a job and a family unit and “still decided to deal
drugs, had a gun with him as part of selling the drugs . . . [and is]
someone who made a decision based on nothing else except
greed.” App. at 16-17. The Court responded that Williams was
“really not the guy to make that argument” regarding the severity

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3 The government does not challenge the District Court’s
application of the § 3553(a) factors nor does it argue that the
Court’s decision to downwardly depart was unreasonable. See
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007); United
States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). Rather, the
government frames its appeal solely in terms of Williams’ alleged
8
of his crime and criminal history, because he did not have “a
terrible record.” App. at 17. Williams spoke briefly, saying that
he knew “what I did was wrong” but did not think “the
guidelines . . . fit the crime that I did.” App. at 18.
The Court then imposed the sentence. It noted that, with
an offense level of 33 and a criminal history category of II (as
set by the Court), the Guideline sentencing range would be 151-
188 months imprisonment. The Court, explaining that it took
into account the nature and circumstances of Williams’ offense,
history and characteristics, and its discretion under 18 U.S.C. §
3553(a), set Williams’ sentence at 120 months imprisonment.
Following imposition of the sentence, the government noted its
objection for the record to the sentence imposed.
II.
On this appeal, we must decide the standard we should
apply in analyzing whether a defendant has breached a plea
agreement; whether Williams in fact breached the plea
agreement; what is the appropriate remedy when a defendant
breaches a plea agreement generally, and in this case
specifically; and if there was a breach, whether we should
remand for re-sentencing before the sentencing judge or a
different judge.
The government argues that Williams’ requests for (1) a
downward departure under U.S.S.G. § 4A1.3 for
overrepresentation of criminal history, (2) a downward departure
under Chapter 5, (3) a request for a variance under Booker, and
(4) a request for a specific sentence of 120 months, were all
breaches of the plea agreement by which the parties agreed to a
blanket prohibition on the seeking of any departures.3 Williams

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breaches in arguing for a downward departure.
9
argues that he did not breach, because he was merely requesting
the Court to reduce the calculation of his criminal history, rather
than his offense level, and to apply the discretionary factors set
forth in section 3553(a). He contends that the plea agreement
did not stipulate a criminal history category, only an offense
level of 33, and that the criminal history category was therefore
open for argument to the Court. Williams emphasizes that in his
requests for leniency he did not dispute that his agreed-upon
offense level was 33. The government responds by pointing out
that the language of the plea agreement stated that Williams was
barred from seeking “any . . . downward departure,” App. at 31
(emphasis added), and Williams did, in fact, request the District
Court to consider a downward departure.
A.
Legal Standard For Reviewing
Alleged Breach of Plea Agreement by Defendant
Although this court has no reported decisions addressing
an appeal by the government of a defendant’s breach of a plea
agreement, we have exercised de novo review over the question
whether the government has breached the plea agreement.
United States v. Rivera, 357 F.3d 290, 293-94 (3d Cir. 2004).
In Santobello v. New York, 404 U.S. 257, 261-63 (1971),
the United States Supreme Court analyzed a plea agreement
according to contract law principles. Santobello was charged
with two felony counts related to gambling. The government
agreed to permit him to plead guilty to a lesser included offense
rather than the felony offenses, and agreed to make no
recommendation regarding the sentence. Nonetheless, at
sentencing the government recommended the maximum
sentence. The Supreme Court concluded that the government
breached the plea agreement, explaining 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.” Id. at 262

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10
(noting that a plea agreement is a bargained-for and negotiated
exchange of promises).
In determining whether the government has breached a
plea agreement, this court applies the same approach that the
Supreme Court articulated in Santobello. We look to the well-
established principle that “[p]lea agreements, although arising in
the criminal context, are analyzed under contract law standards.”
United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir.
1998).
However, we have cautioned that because a defendant
gives up multiple constitutional rights by entering into a plea
agreement, courts must carefully scrutinize the agreement to
insure that the government has fulfilled its promises. Rivera,
357 F.3d at 294-95. “[I]n ‘view of the government’s tremendous
bargaining power [courts] will strictly construe the text against
[the government] when it has drafted the agreement.’” United
States v. Floyd, 428 F.3d 513, 516 (3d Cir. 2005) (quoting
United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000)). Thus,
any ambiguities in a plea agreement must be construed against
the government. Id.
Under contract principles, a plea agreement necessarily
“works both ways. Not only must the government comply with
its terms and conditions, but so must [the defendant].” United
States v. Carrara, 49 F.3d 105, 107 (3d Cir. 1995). We have
observed that a defendant should not be permitted “to get the
benefits of [his] plea bargain, while evading the costs . . . and
contract law would not support such a result.” United States v.
Bernard, 373 F.3d 339, 345 (3d Cir. 2004) (concluding that
defendant, who was contending on appeal that the District Court
erred by applying a particular cross-reference under U.S.S.G. §
2L2.2(c), should be held to the terms of her plea agreement,
which stated that the agreed-upon guideline should apply).
“Under the law of this circuit, [a defendant] cannot renege on his
agreement.” United States v. Cianci, 154 F.3d 106, 110 (3d Cir.
1998). When a defendant stipulates to a point in a plea
agreement, he “is not in a position to make . . . arguments [to the
contrary].” United States v. Melendez, 55 F.3d 130, 136 (3d Cir.
1995), aff’d 518 U.S. 120 (1996). We have held that we have

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“‘no difficulty in holding [a defendant] to the plea agreement for
he seeks the benefits of it without the burdens.’” Cianci, 154
F.3d at 110 (quoting United States v. Parker, 874 F.2d 174, 178
(3d Cir. 1989)).
Applying those principles, it is clear that if we did not
enforce a plea agreement against a breaching defendant, it would
have a corrosive effect on the plea agreement process. We have
little doubt that if the government had argued for an upward
departure in this case, we would have concluded that the
government breached the plea agreement. Because a plea
agreement is a bargained-for exchange, contract principles
would counsel that we reach the same conclusion when a
defendant breaches a plea agreement as we would reach if the
government breached. See Ricketts v. Adamson, 483 U.S. 1, 9
n.5 (1987) (noting that a plea agreement is a bargained-for
exchange). If that were not the case, the government would have
no meaningful recourse if it performed its end of the agreement
but did not receive the benefit of its bargain in return. See
United States v. Alexander, 869 F.2d 91, 95 (2d Cir. 1989)
(stating the fundamental principle that “one party cannot be held
to a bargain that the other party has breached”). That scenario
would make the current system of plea agreements untenable
because it would render the concept of a binding agreement a
legal fiction. That result would be unworkable because our
criminal justice system depends upon the plea agreement
process. See Santobello, 404 U.S. at 261 (explaining why
disposition of charges by plea agreements is an essential part of
the judicial process).
We do not doubt that the government possesses
tremendous bargaining power in the negotiation of plea
agreements. That does not, in and of itself, make the plea
agreement unenforceable. Our recognition that the government
has a great deal of leverage in striking plea bargains is one
reason why we construe ambiguities in such an agreement
against the government. Floyd, 428 F.3d at 516. The relevant
portions of Williams’ plea agreement, however, are not
ambiguous, and thus there is no reason to construe those portions
against the government. After all, the government always has
leverage, and yet we routinely enforce plea agreements in which

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4 See supra n.1.
5 The government also agreed to stipulate to a three-level
reduction for acceptance of responsibility.
12
defendants waive important constitutional rights, such as the
right to appeal. See United States v. Khattak, 273 F.3d 557, 563
(3d Cir. 2001) (enforcing waiver of appellate rights); see also
United States v. Gwinnett, 483 F.3d 200, 202 (3d Cir. 2007).
It is an important consideration in reviewing a plea
agreement that a defendant generally reaps benefits by entering
into such an agreement. See Ricketts, 483 U.S. at 9 n.5
(observing that both parties may receive substantial benefits if
the plea agreement so provides). In this case, the government
agreed not to file a second offender information under 21 U.S.C.
§ 851. That could have increased Williams’ statutory mandatory
minimum penalty from ten years to twenty years because he has
a prior felony conviction.4 In addition, the government agreed
not to charge Williams with the separate offense of possession of
a firearm in connection with a drug trafficking offense under 18
U.S.C. § 924(c), which carries a consecutive mandatory
minimum term of imprisonment of five years. As a result, by
entering into the plea agreement with its stipulations, Williams
received a statutory minimum fifteen years lower than that which
he could have faced absent agreement with the government.5
Several courts of appeals presented with a claim that a
defendant breached a plea agreement have applied basic
principles of contract law to the analysis whether a breach
occurred and the determination of the proper remedy. In United
States v. Ataya, 864 F.2d 1324, 1325-26 (7th Cir. 1988), Ataya
and the government had reached a plea agreement that included
the joint undertakings that the government would dismiss one of
the three charges against Ataya, he would plead guilty to the
other two and he would cooperate, including testifying against a
co-defendant. He declined to testify at a second trial, and the
government filed a superseding indictment based on Ataya’s
breach of the plea agreement. He moved to dismiss the
indictment, which the district court granted after holding a four-

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13
day hearing. On the government’s appeal, the Seventh Circuit
stated that it “has long recognized that a plea agreement is a
contract . . . but a contract in which special due process concerns
for fairness and the adequacy of procedural safeguards obtain.
[citing Santobello] . . . One requisite safeguard of a defendant’s
[due process] rights is a judicial determination, based on
adequate evidence, of a defendant’s breach of a plea bargaining
agreement. The question of a defendant’s breach is not an issue
to be determined unilaterally by the government.” Id. at 1329-30
(certain internal citations and quotation marks omitted).
The Seventh Circuit reversed the dismissal of the
indictment, concluding that the district court’s finding was clear
error, because “[i]n reading the instant plea agreement and
reviewing the record at hand, we are . . . firmly convinced that
the defendant substantially breached an unambiguous provision
in the plea agreement accepted by the court.” Id. at 1330. It
based its ruling on the proposition that the contractual
obligations set forth in a plea agreement impose mutual
obligations on both the government and the defendant.
The Court of Appeals for the Fourth Circuit was
presented with a factual scenario somewhat similar to that before
us here. In United States v. Bowe, 257 F.3d 336, 339 (4th Cir.
2001), the defendant Bowe entered into a plea agreement with
the government in which both parties agreed not to seek any
departures. In exchange, the government agreed not to bring
further charges against Bowe. Despite the agreement, at
sentencing Bowe, through counsel, made a departure motion
based upon his mental condition and sought to introduce
evidence to support the motion. The government then requested
that the plea agreement be declared null and void, but the district
court refused to do so and proceeded with sentencing. On
appeal, the Fourth Circuit concluded that, “[i]n denying the
[g]overnment’s motion to have the court declare the plea
agreement null and void, the district court erroneously permitted
Bowe’s counsel to violate the express terms of the plea
agreement.” Id. at 347. It stated, “[w]e conclude that the court
erred in denying the [g]overnment’s motion to nullify the plea
agreement after the defense sought permission to present
evidence for the purpose of persuading the court to impose a

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14
sentence that departed from the Sentencing Guidelines. Upon
remand, the court should determine whether the plea should be
set aside, or whether a sentence should be imposed within the
Sentencing Guideline range.” Id. Thus, the court of appeals
applied the same principle in a defendant breach case that it
would have applied in a government breach case. See also
Alexander, 869 F.2d at 91 (holding that government is entitled to
similar remedies in an appeal of a defendant’s breach of a plea
agreement as a defendant would be in a government breach
appeal).
Accordingly, we hold that we will apply the same
standard of review in considering a defendant’s breach of a plea
agreement as we would apply in a government breach case. We
will review the question whether a defendant breaches his plea
agreement de novo, and will impose the burden on the
government to prove the breach by a preponderance of the
evidence. See Floyd, 428 F.3d at 516; Rivera, 357 F.3d at 293-
94. Furthermore, we will analyze the issue whether a defendant
has breached a plea agreement according to the same contract
principles that we would apply in analyzing a government
breach, including the principle that we will construe ambiguities
in the agreement against the government. See, e.g., Rivera, 357
F.3d at 294-95.
B.
Whether Williams Breached the Plea Agreement
In determining whether Williams breached his plea
agreement, we examine the plain meaning of the agreement itself
and construe any ambiguities in the agreement against the
government as drafter. See United States v. Gebbie, 294 F.3d
540, 545 (3d Cir. 2002) (“Plea agreements are contractual in
nature, so we begin our analysis as we would with any contract.
We examine first the text of the contract . . . [the] plea
agreement.”); Floyd, 428 F.3d at 516 (construing ambiguities in
the plea agreement against the government). The essential
question is whether the alleged breaching party’s “conduct is
consistent with the parties’ reasonable understanding of the
agreement.” United States v. Hodge, 412 F.3d 479, 485 (3d Cir.
2005) (citation and quotation marks omitted).

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15
Here, paragraph 7 of the plea agreement stated that “[t]he
parties agree not to seek or argue for any upward or downward
departure or any upward or downward adjustment not set forth
herein.” App. at 31. Although the parties recognized in
paragraph one of the agreement that the United States
Sentencing Guidelines were no longer binding, Williams
nevertheless agreed “to the stipulations set forth” in the plea
agreement. App. at 30.
Even though, as the parties recognized in the agreement,
the Guidelines are not mandatory, the stipulations in the
agreement unambiguously prohibited Williams from making
downward departure motions. Therefore, Williams breached the
plea agreement at the August 2, 2005 sentencing and in
counsel’s July 26, 2005 sentencing memorandum. First,
Williams argued that a criminal history category III overstated
his criminal history, and asked the Court to grant him a U.S.S.G.
§ 4A1.3 departure so that he could be treated as a category II
offender. Second, although Williams agreed that his Guideline
range was 168-210 months imprisonment, he argued that the
District Court should depart downwardly from that range
because of his troubled background, poor health, and family
issues, under U.S.S.G. §§ 5H1.4, 5H1.5, 5H1.12, and 5K2.0
(“Chapter Five departure”). Third, Williams asked for a Booker
variance under § 3553, arguing that “a more reasonable sentence
is one below the heartland range.” App. at 70-71. Finally,
Williams specifically requested a sentence of 120 months, which
was below the sentence of any Guideline range resulting from an
offense level of 33. See U. S. Sentencing Guidelines Manual,
Sentencing Table (2003). In each instance, Williams breached
the plea agreement which unambiguously prohibited him from
asking for a downward departure or adjustment and which
provided that Williams agreed that a sentence resulting from an
offense level 33 was reasonable.
Williams makes two arguments why he did not breach the
plea agreement. First, he states that in a post-Booker sentencing
regime, defendants should be able to argue for departures and
non-Guideline sentences, especially because the sentencing
courts are required to consider the factors set forth in § 3553 to
determine whether a non-Guideline sentence is appropriate.

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16
Second, he contends that he was not precluded from arguing
what the appropriate criminal history category should have been
because the plea agreement did not stipulate to a specific
criminal history category.
Both arguments fail. First, nothing in the plea agreement
prevented the District Court from departing downwardly or
imposing a non-Guideline sentence on its own accord. The plea
agreement did not purport to restrict the Court’s duty to consider
the section 3553 factors. Rather, the agreement merely
prohibited Williams from making arguments regarding those
issues. If Williams wanted to make a departure argument, it
would have been prudent to negotiate a different agreement with
the government. Nor can he rely on Booker because he agreed
to the plea agreement three months after Booker was decided.
The District Court advised Williams during his guilty plea
colloquy that the Guidelines were advisory and not mandatory,
and that the Court could impose a sentence higher or lower than
that to which the parties stipulated in the agreement. Thus, the
fact that Booker made the Guidelines advisory, and therefore
enabled district courts to depart from the Guidelines, has no
bearing on the fact that Williams agreed not to make such
arguments.
Second, Williams’ argument regarding criminal history is
unpersuasive. He did not dispute that his criminal history was
correctly calculated under the Guidelines to be a category III.
Rather, he argued that, notwithstanding that proper calculation,
he was entitled to receive a departure under the Guidelines on
the ground that a criminal history category III overstated his
criminal history. Thus, when Williams argued about his criminal
history, he was explicitly seeking a departure notwithstanding
that the plea agreement unambiguously prohibited departure
requests. Indeed, U.S.S.G. § 4A1.3 is entitled “Departures
Based on Inadequacy of Criminal History Category.” U. S.
Sentencing Guidelines Manual § 4A1.3, at 347 (2003) (emphasis
added).
Moreover, Williams had agreed that a sentence imposed
under offense level of 33 was reasonable. The dissent states that
there was no stipulation with respect to the criminal history and

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17
emphasizes that the agreement only made specific reference to a
stipulation regarding total offense level. However, the Guideline
sentence is the result of the criminal history and the offense
level. No criminal history category when paired with the agreed
upon offense level of 33 produces a sentence as low as that
which Williams requested, 120 months. Indeed, even if
Williams were a criminal history category I, his sentencing range
under the Guidelines would have been 135-168 months
imprisonment.
The dissent also reasons that the District Court invited
and allowed Williams’ counsel to make arguments regarding
departures at the sentencing hearing. In that respect, it is
significant that counsel, on behalf of Williams, made arguments
for departure even before the sentencing hearing. Williams’
sentencing memorandum dated July 26, 2005 argued that
Williams should receive departures for overrepresentation of
criminal history, under Chapter 5, and under Booker. The
District Court did not invite Williams’ counsel to make those
arguments in the sentencing memorandum. Williams’ position
at the sentencing hearing, therefore, was simply a continuation
of that which he had already initiated in the sentencing
memorandum. It is thus indisputable that, in doing so, Williams
breached the plea agreement.
Finally, we emphasize again that our decision in no way
reflects upon the discretion of the sentencing judge to issue a
sentence the judge deems reasonable. This decision does not
address the overall reasonableness of the sentence imposed, but
simply addresses, under principles of contract law, the
defendant’s obligation to carry out the requirements of a plea
agreement.
C.
Remedy
We turn to examine the appropriate remedy in this case.
Until this case, our court has only had occasion to
consider the appropriate remedy when the government has

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18
breached a plea agreement. We have held that “‘[w]hen the
government breaches a plea agreement, the general rule is to
remand the case to the district court for a determination whether
to grant specific performance or to allow withdrawal of the
plea.’” Rivera, 357 F.3d at 297 (quoting Nolan-Cooper, 155
F.3d at 241). See also United States v. American Bag & Paper
Corp., 609 F.2d 1066, 1068 (3d Cir. 1979). That same remedy
has been applied when the defendant breaches a plea agreement.
See generally 5 Wayne R. LaFave et al., Criminal Procedure §
21.2(e), at 60 (2d ed. Supp. 2007) (“[I]t is generally accepted
that ‘when a defendant breaches his plea agreement, the
[g]overnment has the option to either seek specific performance
of the agreement or treat it as unenforceable’ (at least absent
language in the plea agreement specifying fewer or other
remedies).”) (citation omitted). See also Bowe, 257 F.3d at 346
(determining that remedy of specific performance, plea
withdrawal or other equitable relief is appropriate when a
defendant breaches a plea agreement).
This court has observed that a defendant should not be
permitted “to get the benefits of [his] plea bargain, while
evading the costs . . . and contract law would not support such a
result.” Bernard, 373 F.3d at 345. In Alexander, 869 F.2d at 95,
the Second Circuit held that although the government is
ordinarily entitled to the same remedies when a defendant
breaches as a defendant would be entitled to if the government
breaches, the government waived its right to rescind the plea
agreement by proceeding with sentencing and specific
performance was the only remedy that remained. This court
faced with the same issue as that considered by the Second
Circuit, ruled similarly. In Nolan-Cooper, 155 F.3d at 241, we
stated that when the government breaches a plea agreement, the
remedy would be “to remand the case to the district court for a
determination whether to grant specific performance or to allow
withdrawal of the plea and rescission of the plea agreement.”
Nevertheless, in Nolan-Cooper, we held that there are
instances when remand is not necessary and the appellate court
should determine the remedy. In United States v. Badaracco,
954 F.2d 928 (3d Cir. 1992), this court concluded that because
the defendant had already served a considerable portion of his

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19
custodial sentence, “permitting the withdrawal of his plea would
be an empty remedy.” Id. at 941. It followed that specific
performance was the only adequate remedy. The Alexander
decision presented another such instance. Nolan-Cooper
presented yet another instance, as the non-breaching party, the
defendant, sought specific performance because she did not want
to withdraw her plea. We held that it was not necessary to
remand to the district court to determine the remedy because the
defendant had already chosen the preferred remedy: inasmuch as
she did not want to withdraw her plea, we held the court should
not impose a remedy against a non-breaching party’s will.
Moreover, the defendant sought only the remedy of specific
performance, which we explained imposed a lesser burden than
recision or withdrawal of the plea. We remanded for re-
sentencing according to the plea agreement, i.e., we ordered the
remedy of specific performance. See id.
The manner in which we have applied the general rule to
a government’s breach is instructive in fashioning an appropriate
rule for application to a defendant’s breach of a plea agreement.
In the case of a government breach, we have allowed for an
exception when the circumstances dictate that there is only one
appropriate remedy for the defendant. Similarly, when the
government requests specific performance at the hands of a
defendant’s breach, we recognize that resentencing under the
terms of the executed plea agreement might be the only
appropriate remedy. In this case, the government does not seek
withdrawal of the plea or rescission of the plea agreement;
rather, the government seeks only specific performance of the
plea agreement. Implicit in the government’s request for
specific performance is its assessment that resentencing is in its
best interest. We see no reason to second guess this decision by
the government and we see no need to burden the District Court
with another hearing.
We will therefore remand this matter to the District Court
so that the parties may specifically perform their obligations
under the plea agreement, i.e., not to argue for any departures
(which, we reiterate, does not preclude the District Court from
exercising its own judgment as to the sentence).

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20
The government has asked that we remand for re-
sentencing to a judge other than the sentencing judge. In Nolan-
Cooper, we stated that “[i]t is . . . the rule in this circuit that if
specific performance is the applicable remedy, the defendant
must be resentenced by a different district judge than the one
who presided over the now-vacated original sentence.” Id.
Importantly, remanding to a different district court judge does
not reflect upon the District Judge’s prior decision. Rather,
“[t]his result obtains irrespective of the fact that the need for
resentencing was caused by the [breaching party] and is not
attributable to any error by the sentencing judge.” Id.
A sentencing judge could be influenced inadvertently by
the breaching party’s prior arguments when the case is remanded
for re-sentencing. See United States v. Hayes, 946 F.2d 230,
236 (3d Cir. 1991). Thus, the explanation for remanding to a
different judge is that “‘compliance with the agreement is best
insured by requiring resentencing before another district judge.’”
Id. (quoting United States v. Corsentino, 685 F.2d 48, 52 (2d
Cir. 1982)); see also United States v. Padilla, 186 F.3d 136, 142-
43 (2d Cir. 1999) (remanding case to different judge for re-
sentencing in order to “preserve the appearance of justice” even
though court had no doubt sentencing judge could have re-
sentenced fairly) (citation and quotation marks omitted).
We do not suggest that the District Court erred by
granting the departure based upon overrepresentation of criminal
history. The breach occurred when Williams made the argument
for a departure and had nothing to do with the District Court’s
sentencing decision.
III.
For the foregoing reasons, we will vacate the sentence
imposed and remand to the District Court for re-sentencing
before a different judge, pursuant to the plea agreement.

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6 The distinction between “variances” and “departures” has
become common usage. A “variance” is a sentence that deviates
from the guidelines range based on Booker and the sentencing
factors listed in 18 U.S.C. § 3553(a). A “departure,” on the other
hand, is a sentence that differs from the guidelines range based on
specific guidelines provisions that authorize such changes. United
States v. Gunter, 462 F.3d 237, 247 n.10 (3d Cir. 2006).
21
USA v. Oyton Williams, No. 05-4153
WEIS, Circuit Judge, Dissenting.
I agree with the majority that as a general matter a
defendant should not be permitted to renege on a valid and clear
sentencing stipulation and a plea agreement. But here there was
no breach in arguing for a guideline departure on the criminal
history and defendant presented his argument for a variance and
mitigation under the guidelines with the permission of the
District Court. The judgment should be affirmed.
The text of the plea agreement and events that occurred at
the sentencing hearing lead to the conclusion that a remand to a
different judge for re-sentencing is unnecessary. The
government sets forth two grounds for its assertion that
defendant violated the provisions of the plea agreement and
stipulations. The first is that defendant agreed not to argue for a
departure under the criminal history category. The second is the
defendant’s alleged agreement not to request a downward
variance and mitigation under the guidelines.6 The alleged
breaches are best considered separately.
I.
The government’s argument that defendant agreed not to
argue for a reduction in the criminal history is not supported by
the record and is contrary to a ruling by the District Court. In his
statement of reasons for granting the departure, the district judge
wrote, “The sentence departs below the guideline range pursuant
to a defense motion based on the following reason for departure
to which the government has objected and not addressed in a

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22
plea agreement.” (emphasis added). That ruling should end the
matter. However, it is supported in the record.
The stipulations prepared by the United States Attorney’s
Office did not specifically prohibit argument on a guideline
departure based on overstatement of the criminal history.
Consequently, by asking to reduce the calculation for criminal
history, defendant did not violate the stipulations or the plea
agreement.
The relevant portions of the plea agreement support this
conclusion. The parties agreed that “neither party will argue for
the imposition of a sentence outside the Guidelines range that
results from the agreed total Guidelines offense level [of 33].”
They also stipulated “not to seek or argue for any . . . downward
departure or any . . . downward adjustment not set forth herein.”
The agreement also stated that “[t]o the extent that the
parties do not stipulate to a particular fact or legal conclusion,
each reserves the right to argue the existence of and the effect of
any such fact or conclusion upon the sentence.” Further, with
respect to the defendant’s criminal history category level, it is
stipulated that “[t]he parties reserve any right they may have
under 18 U.S.C. § 3742 to appeal the sentencing court’s
determination of the criminal history category.”
Although the stipulations specifically quote the term
“total Guidelines offense level” on no less than seven occasions,
there is only one reference to the “criminal history category.”
Two of the principal factors in guideline sentencing
calculations are the “offense level” and the “criminal history
category.” The text of the stipulations makes it obvious that the
focus of the plea agreement is on the “offense level.” It is
particularly significant that the stipulations studiously avoid any
attempt to elaborate or even discuss the basis for the criminal
history factor.
The stipulations’ reference to the “range that results from
the agreed total Guidelines offense level [of 33]” is ambiguous
because a sentencing range is not determined solely by the

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7 A. Doyle, Silver Blaze, in The Complete Sherlock Holmes
335 (1927).
23
offense level, but by a combination of that factor and the
criminal history. At best, the stipulation is confusing.
Bearing in mind that the agreement drafted by the United
States Attorney’s Office must be construed in favor of
defendant, United States v. Baird, 218 F.3d 221, 229 (3d Cir.
2000), it is inescapable here that the parties intended to leave the
question of criminal history open and permit argument on that
issue by both parties. The open-ended permission to appeal the
District Court’s finding on the criminal history makes it clear
that argument on that factor is not foreclosed.
The right of appeal preserved by the stipulation
implicitly, but no less forcefully, includes the right to present
that issue to the district court. It is well established that a point
not raised in the district court generally will not be heard by an
appellate court. See United States v. Merlino, 349 F.3d 144, 161
(3d Cir. 2003) (an “argument . . . not raised below . . . is not
cognizable on review unless it constitutes plain error.”). If the
parties were prohibited from raising the matter in the district
court, they would not likely be heard on appeal. Hence, denial
of the right of argument before the sentencing court would
cripple if not destroy the right to appeal.
The deafening silence in the stipulations as to the criminal
history is both as eloquent and persuasive as was the fact that the
watchdog did not bark.7 I agree with United States v. Giorgi,
840 F.2d 1022 (1st Cir. 1988), where the Court said, “Given the
relative interests implicated by a plea bargain, we find that the
costs of an unclear agreement must fall upon the government. . .
. [T]he government must shoulder a greater degree of
responsibility for lack of clarity in a plea agreement.” Id. at
1026.
Here the sentencing judge was well aware of the
stipulations and summed up the situation at the sentencing
hearing, saying, “well, I suppose the way to look at this is as

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24
follows: The criminal history category doesn’t fall within [the
terms of the plea agreement], I suppose, because you stipulated
to the offense level, not to the criminal history category.” The
defense attorney replied, “That’s correct.”
I would hold, in accordance with the District Court’s
ruling, that defendant was permitted to argue for a reduction of
the criminal history category. Defendant did not violate the plea
agreement in asking for a departure under the guidelines.
II.
The government relies on its alternate argument that
defendant violated the plea agreement when he argued
mitigating factors under 18 U.S.C. § 3553(a) and Chapter 5 of
the guidelines. Defendant agreed “not to seek or argue for any . .
. downward departure or any . . . downward adjustment not set
forth [in the plea agreement].” In another stipulation, defendant
agreed not “to argue for the imposition of a sentence outside the
Guidelines range that results from the agreed total Guidelines
offense level [of 33].” (emphasis added). The government’s
argument fails because the District Court invited and allowed the
argument at the sentencing hearing.
After entertaining the defendant’s motion on his criminal
history component, the Court ruled in his favor, reducing the
enhancement by one level. The Court then noted that the
government’s papers referred to a stipulation “with regard to not
seeking a downward departure” and stated, “Notwithstanding the
court’s ruling a moment ago [granting the defendant’s request to
reduce his criminal history], I presume that you’re seeking other
downward departures?” The defense attorney replied,
“Your honor, since U.S. v. Booker was decided, I
sort of struggled with the issue exactly what the
effect of the stipulation is in light of the decision
. . . .
I want to make a motion to call to the Court’s
attention that, even if the Court believes that I
cannot make that motion at this time because of the
stipulation, I believe that under . . . 18 U.S.C. §

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25
3553, I think the Court can still take into account
factors that the Guidelines otherwise would
prohibit consideration of.”
After a brief discussion of the affect of Booker, the Court
observed that defendant was arguing that he had stipulated to the
offense level, not the criminal history category. The Court then
continued,
“Now, with regard to the other motions you have made
. . .”
Defense Attorney: “May I?”
The Court: “Yes, because I’m like, well, I don’t
really see a way to get around this.”
The defendant’s attorney then argued at some length,
concluding, “the more reasonable sentence under Booker is
something in that mandatory minimum range.”
The Court then called upon the Assistant United States
Attorney who spoke to the defendant’s personal circumstances
and concluded that “the guidelines [range] . . . [is] fair.” The
government did not cite the stipulations banning argument nor
object to the defense counsel’s presentation at the sentencing
hearing. At no point in the argument did the government’s
attorney declare that the plea agreement had been breached and
ask that it be set aside. Had he done so, the District Court would
have ruled on whether a violation had occurred and whether it
had been waived. Baird, 218 F.3d at 230 (when a defendant
violates a plea agreement, the government can declare a breach
and attempt “to sever its relationship with defendant or to
negotiate a new arrangement”).
As is true with most oral presentations, articulation of the
parties’ contentions at the hearing was not as sharply defined as
it would have been in carefully written form. But here it is clear
that both the Court and defense counsel were quite conscious of
the stipulations in the plea agreement.
At the sentencing hearing, it was the Court that first
brought up “the other motions,” those discussing matters other

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8 United States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001)
came to a different conclusion, but I do not find it persuasive.
26
than the criminal history. The defendant’s attorney’s question,
“May I?,” was a request to argue for a reduction in sentence
despite the stipulations. The Court responded “Yes, because I’m
like, well, I don’t really see a way to get around this.” This
comment shows that the Court was pondering the issue and
wished to hear defense counsel’s views. It is significant, in view
of the stipulations, that the Court did not interrupt the defense
argument nor limit it in any way. The experienced district judge
knew what he was doing.
A similar situation arose in United States v. Bradstreet,
207 F.3d 76 (1st Cir. 2000), superseded on alternate grounds by
U.S.S.G. § 5K2.19 (2000). In that case, defendant agreed not to
argue for a downward departure, but nevertheless did so at the
sentencing hearing. Id. at 79. The district court recognized that
it was not bound by the recommendations contained in a
sentencing agreement and held that, even though the defendant’s
argument breached the agreement’s terms, the court was entitled
to consider the request for a departure. Id. at 81. The Court of
Appeals affirmed, holding that “[b]ecause the government had
sufficient notice of Bradstreet’s argument and could formulate
an effective response, we think the court acted within its
discretion. Sentencing, after all, is a matter for the district court
and not for the government.” Id.8
Here, in granting permission to argue for a sentence
outside the guidelines, the Court was properly exercising its
authority. The defendant’s acceptance of the opportunity did not
amount to a sanctionable breach of the plea bargain. Having
received the Court’s consent to argue a key component of
sentencing, defense counsel’s conduct was proper.
I must also question whether a plea agreement to forgo
argument on a crucial phase of sentencing, consideration of the §
3553(a) factors, should be enforceable. To deny the sentencing
judge the ability to carry out his statutory duty and responsibility
through consent of the parties seems to undermine the
sentencing procedure Congress has mandated. The sentencing

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27
judge in this case chose to hear argument under § 3553(a), a
ruling that was responsible and proper.
Perhaps reflecting doubts about Booker’s scope in its
immediate wake, the government’s phrasing of the plea
agreement might be seen as an effort to force the District Court
to sentence within the guidelines. In addition to the provisions
restricting the parties’ ability to argue for departures and
sentences outside the guidelines range, the parties stipulated that
“the Court should sentence Williams within the Guidelines range
that results from the total Guidelines offense level [of 33].”
(emphasis added).
However, it was agreed that “[t]he sentence to be imposed
upon Williams is within the sole discretion of the sentencing
judge, subject to the Sentencing Reform Act, 18 U.S.C. § 3551-
3742, and the sentencing judge’s consideration of the United
States Sentencing Guidelines. The United States Sentencing
Guidelines are advisory, not mandatory.” Further, the
prosecutor reminded defendant that the “agreement to stipulate .
. . cannot and does not bind the sentencing judge, who may . . .
reject any or all of the stipulations entered into by the parties.”
The language of these latter provisions reflects the state
of sentencing after Booker. The Supreme Court’s conclusion
that appellate courts should review district courts’ sentencing
decisions for “reasonableness” under an “abuse-of-discretion
standard” reinforced the notion that Booker granted district
courts broad sentencing discretion. See Gall v. United States,
552 U.S. ____, 2007 WL 4292116, at *7 (Dec. 10, 2007) (“[an]
appellate court should . . . consider the substantive
reasonableness of the sentence imposed under and abuse-of-
discretion standard. . . . [It] must give due deference to the
district court’s decision.”); Kimbrough v. United States, 552
U.S. ____, 2007 WL 4292040, at *15 (Dec. 10, 2007) (stating
that appellate courts must give “due respect to [a] District
Court’s reasoned appraisal” of the proper sentence for a
defendant).
Just as deference is due to the District Court’s decision on
the appropriate length of a sentence, so too should that be the

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28
result with respect to the procedural rulings made by the
sentencing judge. In interpreting and applying plea agreements
particularly, district judges, with their knowledge of local
conditions, are in a superior position to assess those agreements.
Sentencing is primarily the responsibility of the district courts,
not the probation office, not the government, not the defense,
and not the appellate courts, although those parties may provide
valuable insights.
In conclusion, the defendant’s argument advocating a
reduction in his criminal history was not precluded in the plea
agreement. The Court made a permissible procedural ruling in
deciding to hear the defendant’s other arguments. The sentence
was reasonable. Accordingly, I would affirm the judgment of
the District Court.

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