United States v. Lewis, 673 F.3d 758

Lewis pled guilty in 2005 to felon in possession of a firearm under 18 U.S.C. § 922(g)(1); plea agreement allowed all sides to comment or offer evidence at any proceeding related to the case.
District court accepted the plea and sentenced Lewis to 120 months, consecutive to a 30-month revocation sentence.
In 2009, the government filed a Rule 35(b) motion for substantial assistance; hearing held November 10, 2009, Lewis absent, counsel participated without objection; government sought 20% reduction and district court granted 24 months.
Approximately two months later, Lewis learned of the hearing; he filed a pro se motion alleging bad faith but did not raise the plea agreement; district court denied.
On appeal, Lewis contends the government breached the plea agreement by proceeding without his participation; the court concludes the breach occurred and vacates the conviction, remanding for a new Rule 35(b) hearing with Lewis present.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal waiver bars review of the breach claim	Lewis argues breach nullifies waiver and permits review	Government contends waiver forecloses review	Waiver does not bar review for breach
Whether the plea agreement guaranteed Lewis the right to participate in Rule 35(b)	The clause grants a right to participate in proceedings related to the case	No independent right to participate; clause merely allows comments where rights already exist	Plain language guarantees Lewis the right to participate
Whether the government's conduct breached the plea agreement	Proceeding without Lewis violated the agreement	Ambiguity in the clause means no breach	There was a breach of the plea agreement
Whether the breach was plain error affecting substantial rights	Error was plain and affected information useful to Lewis	Ambiguity could admit multiple interpretations; not plainly erroneous	Yes; error was plain and affected substantial rights
Appropriate remedy for the breach	Remand for new Rule 35(b) hearing with Lewis present	Remand unnecessary if no substantial error	Conviction vacated and remanded for a new Rule 35(b) hearing with Lewis present

United States v. Williams, 590 F.3d 579 (8th Cir. 2009) (establishes § 3742(a) review limits for Rule 35(b) sentences)
United States v. Jensen, 423 F.3d 851 (8th Cir. 2005) (breach of plea inducement violates due process; plain-error review for breaches)
United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009) (appeal waiver may be forfeited when plea breach occurs)
Olano v. United States, 507 U.S. 725 (1993) (plain-error framework for forfeiture and error prejudice)
Puckett v. United States, 556 U.S. 129 (U.S. 2009) (plain-error analysis in plea-agreement contexts; draftsmen risk ambiguity)
United States v. Dominguez Benitez, 542 U.S. 74 (U.S. 2004) (but-for prejudice standard for harmless error in some contexts)
United States v. Bagley, 473 U.S. 667 (U.S. 1985) (materiality and prejudice in review of evidence)