United States v. Under Seal, 902 F.3d 412

Appellant pleaded guilty to conspiracy to commit access-device fraud and aggravated identity theft under a plea agreement with a sealed supplement addressing cooperation and substantial-assistance motions.
The sealed supplement required truthful, full cooperation and testimony; paragraph 4 promised a §5K1.1/§3553(e) motion if the government determined Appellant provided substantial assistance "in its discretion."
Paragraph 6 set breach remedies: if Defendant gave false, incomplete, or misleading testimony (or otherwise breached), the government could be released from its obligations and the court would determine breach by a preponderance of the evidence.
Before sentencing, the government declined to file a §5K1.1 substantial-assistance motion, believing Appellant had downplayed co-conspirators’ involvement, but it did not declare Appellant in breach and still made other plea-agreement recommendations.
The district court accepted the government’s choice, gave a downward variance for assistance, and imposed a 49-month total sentence (25 months on count one, mandatory 24 months consecutive on count two).
Appellant appealed, arguing the government could not decline to seek a §5K1.1 motion on the ground of untruthful testimony without first proving breach by a preponderance under the plea agreement.

Issue	Appellant's Argument	Government's Argument	Held
Whether the government must prove breach by a preponderance before declining to file a §5K1.1 motion based on alleged untruthful or incomplete testimony	The plea agreement requires the gov’t to file a §5K1.1 motion if it determines Appellant provided substantial assistance; if it declines for reasons tied to paragraph 6 (e.g., untruthful testimony), it must first prove breach by a preponderance	Paragraph 4 gives the government sole discretion to decide whether assistance warrants a §5K1.1 motion; paragraph 6 governs remedies if the gov’t elects to declare a breach, but does not limit the gov’t’s discretion to simply withhold a motion	Court held gov’t acted within the plea agreement: it could decline to move for substantial-assistance without proving breach; no procedural showing required when gov’t elects to maintain the agreement and withhold the motion
Whether the plea agreement is ambiguous such that ambiguity should be construed against the government	Agreement is ambiguous and must be interpreted in Appellant’s favor to require a breach hearing before withholding a §5K1.1 motion	Agreement is unambiguous: paragraph 4 and paragraph 6 address distinct matters (discretion to file vs. breach remedies); overlap of possible triggers does not create ambiguity	Court held the agreement unambiguous and declined to construe it against the government; overlap does not make it ambiguous

United States v. Warner, 820 F.3d 678 (4th Cir.) (use contract principles to enforce plain language of plea agreements)
United States v. Yooho Weon, 722 F.3d 583 (4th Cir.) (same)
United States v. Barefoot, 754 F.3d 226 (4th Cir.) (ambiguities in plea agreements construed against government)
United States v. Davis, 714 F.3d 809 (4th Cir.) (greater scrutiny for plea agreements because they waive rights)
United States v. Zuk, 874 F.3d 398 (4th Cir.) (courts may not rewrite unambiguous plea agreements)
United States v. Hallahan, 756 F.3d 962 (7th Cir.) (non-breaching party may elect to enforce remaining contract terms after breach)
United States v. McLaughlin, 813 F.3d 202 (4th Cir.) (contracts construed in context; sensible meaning sought)
United States v. Lewis, 673 F.3d 758 (8th Cir.) (definition of contractual ambiguity)
United States v. Gebbie, 294 F.3d 540 (3d Cir.) (contract ambiguity principles)
United States v. Bradley, 400 F.3d 459 (6th Cir.) (courts should respect parties’ negotiated allocation of risk in plea agreements)