United States v. Xayver Warner, 820 F.3d 678

Warner pleaded guilty under a plea agreement to aiding and abetting the theft of a firearm; the agreement stated the parties "agree that the 4-level increase under § 2K2.1(b)(6)(B) does not apply" and that the United States "will inform the Court . . . of all facts pertinent to the sentencing process."
Before and during plea negotiations the prosecutor told defense counsel she then had no information implicating the enhancement and could agree it did not apply.
The presentence report recommended applying the § 2K2.1(b)(6)(B) 4-level enhancement based on Warner’s related state breaking-and-entering offenses, which would raise his Guidelines range from 33–41 to 51–63 months.
After the plea but before sentencing the government changed its official legal position on how to treat certain North Carolina Class I offenses for federal purposes (Simmons analysis) and concluded those offenses are felonies regardless of a defendant’s state criminal-history category.
In its sentencing filing, the government informed the court of that changed legal position (asserting the enhancement would apply under the new view) but nonetheless asked the court to "honor the agreement" and not apply the enhancement.
The district court applied the enhancement, imposed a 48-month sentence, and denied Warner’s motion for specific performance claiming the government breached the plea agreement by not advising the court that the enhancement does not apply.

Issue	Warner's Argument	Government's Argument	Held
Whether the government breached the plea agreement by telling the court it now believed the § 2K2.1(b)(6)(B) enhancement applied (while asking the court not to impose it)	Government promised to advise the court that the enhancement does not apply; its filing stating the enhancement did apply breached that promise	Government complied by consistently recommending the enhancement not be applied and had an obligation to inform the court of intervening legal authority supporting application	Court held the government breached the plea agreement: it promised to state its position that the enhancement does not apply but instead told the court it believed it did apply
Whether the breach was material and the appropriate remedy (specific performance / resentencing)	The promise not to apply the enhancement was central to Warner’s acceptance of the plea; the breach deprived him of the agreed benefit	Any breach was not material because both parties and the court understood the government was recommending the enhancement not apply; prosecutor had duty to inform court of relevant authority	Court held the breach was material; Warner elected specific performance, so the sentence was vacated and the case remanded for resentencing before a different district judge

Santobello v. New York, 404 U.S. 257 (1971) (prosecutor must fulfill plea agreement promises; remedy may include resentencing or specific performance)
United States v. Jordan, 509 F.3d 191 (4th Cir. 2007) (interpret plea agreements using contract-law principles with heightened scrutiny)
United States v. Scruggs, 356 F.3d 539 (4th Cir. 2004) (materiality of breach measured by deprivation of expected benefit)
United States v. Brown, 500 F.2d 375 (4th Cir. 1974) (when defendant seeks specific performance, courts should honor that election)
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (framework governing when state offenses count as felonies for federal sentencing)