Puckett v. United States – Oral Argument – January 14, 2009

Media for Puckett v. United States

Audio Transcription for Opinion Announcement – March 25, 2009 in Puckett v. United States

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John G. Roberts, Jr.:

We will hear argument first today in Case 07-9712, Puckett v. United States.

Mr. Isaacson.

Lars R. Isaacson:

Mr. Chief Justice, may it please the Court: This case is framed by two major facts: Jimmy Puckett pled guilty and waived his fundamental right to trial in exchange for a promise by the government that they agreed he was qualified for a three-level reduction in his offense level; and the government of the United States breached this promise.

The teachings of this Court in this situation are instructive.

For a plea to be valid, it must be voluntary and intelligent.

Ruth Bader Ginsburg:

Mr. Isaacson, you said there were two facts.

Aren’t there three?

Isn’t it a fact that after the plea bargain the defendant in essence broke his side of the bargain by committing a crime while he was in jail?

Lars R. Isaacson:

No, Your Honor.

He did not breach the plea agreement by doing that.

He–

Antonin Scalia:

Well, I used to teach contract law and I’ll tell you that would have been a breach of contract.

That would have been a breach on his part.

Now, the government has conceded the breach of the plea agreement.

I don’t — I can’t understand why they did that, but they apparently have conceded it.

Does that mean that we have to ignore it for purposes of deciding what the — what the remedy is?

Ignore the reality that there was a breach?

I mean, you know, if the government said, we will ask the court to sentence at the lower end because of the — the remorse that the defendant has shown, and the defendant then demonstrates that he has no remorse by — you know, suppose he comes and stabs the judge — is the government really supposed to have to go before the judge and say,

“Your Honor, this man is really remorseful and you should sentence him at the lower end? “

It seems to me it’s a basic principle of contract law that a party to a contract cannot take action which makes it impracticable for the other side to carry out his part of the bargain, and that’s what your client did.

The government couldn’t practicably go in and make that argument when he had demonstrated himself to be an unremorseful criminal.

Lars R. Isaacson:

–The government in this case drafted a plea agreement, and most plea agreements — I’ve practiced in the Northern District of Texas quite often, and virtually every plea agreement has a provision in it that says if the defendant does some type of criminal activity, thus it will render it void.

This plea agreement did not have that in it.

Antonin Scalia:

Oh.

Lars R. Isaacson:

So it’s different than most plea agreements.

Anthony M. Kennedy:

So you want to us make the inference that the impermissible or criminal activity was permitted by the absence of this specific clause.

You say there is no implied condition, no implied covenant?

Lars R. Isaacson:

Well, I’m not — what we are saying is the government needs to obey the promise in the plea agreement.

The promise in the plea agreement is–

Anthony M. Kennedy:

Well, the questions so far indicate that one of the promises was an implied promise that you will keep the terms of the agreement by lawful behavior.

Anthony M. Kennedy:

So that just — what you say just begs the question.

Now, I recognize the government has conceded a breach, and we will probably move on from that point.

But, as Justice Scalia indicates, it puts the case in a very artificial posture, it seems to me.

Lars R. Isaacson:

–It is — well, it is up to the judge to determine whether or not the defendant gets the acceptance points or not.

The bargain here was not that Mr. Puckett would get the points, but that the government would agree that he was qualified to receive those points.

John G. Roberts, Jr.:

And there is nothing theoretically inconsistent with the government — you can feel remorse.

I mean, you’re not going to do it again.

You going to feel remorse every time you do it, but that doesn’t mean he didn’t feel remorse from the crime he was pleading to.

Lars R. Isaacson:

Yes, 3E1.1.

There is a number of different factors that go into whether or not someone gets the acceptance points.

It is the judge’s discretion to give those points and there are a number of different factors that go into it.

Certainly the termination of criminal activity is one 1 of those factors the court looks at, but it’s not the only one.

Ruth Bader Ginsburg:

But this judge said — and he was open in his thinking.

He said:

“Unheard to me that I would give acceptance of responsibility credit to someone that as soon as he gets sent to jail is out there committing another crime. “

Lars R. Isaacson:

That is what Judge–

Ruth Bader Ginsburg:

The judge did say that.

He said it was unknown to him that judges give acceptance of responsibility credit to someone who in the interval between the plea and when he shows up in court for sentencing commits another crime.

Lars R. Isaacson:

–That is what Judge Sanders did say.

David H. Souter:

Your point is not that he should have gotten the reduction.

Your point is that the government should have made the recommendation.

Lars R. Isaacson:

Well, the position–

David H. Souter:

Isn’t it?

Isn’t that your point?

Lars R. Isaacson:

–Yes.

David H. Souter:

The agreement called for them to make a recommendation and they didn’t make it.

In fact, they recommended the contrary.

And that’s your gripe, right?

Lars R. Isaacson:

The plea agreement did not say the government had to get up there and make a statement at sentencing that he was supposed to get his points.

They just agreed he was entitled to his acceptance points.

Lars R. Isaacson:

There was two parts of the plea agreement.

The first part that they agreed to was, you know, that he was entitled to those points; and the second part was that they would recommend at sentencing that he get the lower in the guideline range.

The first part was not — did not say they had to get up there and say that.

They chose on their own to get up there and breach the plea agreement by saying, he’s not entitled to those points.

Antonin Scalia:

Where is that in the record, do you know offhand?

Where the plea agreement is?

Lars R. Isaacson:

It’s page 54a of the Joint Appendix volume 1, paragraphs 8 and 9.

Antonin Scalia:

Thank you.

John G. Roberts, Jr.:

I suppose Justice Ginsburg’s point is relevant, though, on the question of prejudice.

If the judge gets up there and says, I don’t care what the government says, I am not going to give anybody a departure when they have committed another crime, then you haven’t been prejudiced by the government’s breach.

Lars R. Isaacson:

Well — I believe he has been prejudiced by the government’s breach, because once the government violates the plea agreement on the first level, as we know under the prior precedents of this case, it makes the actual plea agreement void.

And secondly, the Santobello case clearly talks about it is not important the effect on the sentencing judge what the — in Santobello the government breached a plea agreement and the judge said: It doesn’t matter the government breached the plea agreement; I would have done the same thing anyway; it makes no difference.

This Court said specifically that’s not relevant.

Samuel A. Alito, Jr.:

Well, the judge would have known about what happened anyway from — from the presentence investigation, wouldn’t he?

Lars R. Isaacson:

Correct.

I guess the point I am trying to make is the agreement here was not that Judge Sanders would give him acceptance points.

The fact is the government made the position — and I should point out that Mr. Puckett, he gave up all his rights just for this slim reed of hope.

Ruth Bader Ginsburg:

But he could have, if he felt that way — I mean, there they were in the courtroom; all of them knew about the plea agreement because there had been the Rule 11 colloquy when it was taken, right?

Lars R. Isaacson:

I’m sorry, ma’am.

I didn’t–

Ruth Bader Ginsburg:

When the plea was taken–

Lars R. Isaacson:

–Yes.

Ruth Bader Ginsburg:

–it was the same judge, wasn’t it?

Lars R. Isaacson:

Yes, Judge Sanders.

Ruth Bader Ginsburg:

And so they were all there and the defendant was asked all these questions, and the government — and the judge knew about the government’s side of the plea bargain.

Lars R. Isaacson:

Right, yes.

Ruth Bader Ginsburg:

So it was not a secret to anyone that the government said it would ask for the extra acceptance of responsibility credit.

And yet the defendant and his lawyer stand there and they don’t say a word: Wait a minute, judge.

They didn’t object at — there was no motion to withdraw the plea, was there?

Lars R. Isaacson:

Mr. Puckett had made a motion prior to the sentencing to withdraw his plea on his own.

Lars R. Isaacson:

He basically pro se had done that.

But not–

Ruth Bader Ginsburg:

But–

Lars R. Isaacson:

–I’m sorry.

Ruth Bader Ginsburg:

–Before the judge there was no plea to withdraw the plea.

Lars R. Isaacson:

During the sentencing, no, there was not.

Ruth Bader Ginsburg:

And so that’s why we are — if he had asked to withdraw the plea, then we’d have a different case.

But he didn’t, so we are here on plain-error review.

Lars R. Isaacson:

Our point is that we suggest plain error shouldn’t be applied to this case.

This court in Santobello said 35 years ago when the government breaches a plea agreement it can never stand.

Ruth Bader Ginsburg:

But Santobello was a case where there was a timely objection.

Lars R. Isaacson:

That is correct, but the principles of whether or not when the government breaches a plea agreement that renders the underlying conviction void raises it to a different level.

Samuel A. Alito, Jr.:

Why should that be the case?

I know plea agreements are not strictly governed by contract law, but there is an analogy and your whole argument seems to be that the government’s breach rendered the plea agreement void.

But why would that so?

There was a plea agreement, voluntarily entered into, and then there was a breach.

So, why shouldn’t the issue be what is the remedy for the breach?

And why shouldn’t it be governed by the plain-error rule like most errors that occur at trial?

Lars R. Isaacson:

I would suggest it goes to the very heart of whether or not he actually pled.

Justice Ginsburg’s raised a great point about what Judge Sanders did in this case.

He was long involved.

The promises in the plea agreement were talked about.

Mr. Puckett had every right to rely upon those promises when he foreclosed his right to jury trial, his right to present witnesses on his own behalf.

This is a solemn–

Samuel A. Alito, Jr.:

But you can say that in every case in which parties enter into a contract and later there is a breach.

The fact that one of the parties later breaches doesn’t mean that there never was a contract.

There was an agreement that he voluntarily entered into at that time.

And then there was a — subsequently there was a breach, but that doesn’t mean that he involuntarily — he did not voluntarily enter into the agreement, does it?

Lars R. Isaacson:

–I would suggest this Court’s precedent is that it has to be a knowing waiver of his rights, that promises that are unfulfilled or unfulfillable render the plea itself void.

The constitutional due process overtones or overpinnings of a plea agreement as opposed to a normal contract makes this different.

Ruth Bader Ginsburg:

What relief are you seeking now?

You didn’t — you didn’t ask to withdraw the plea when you were before the sentencing judge.

Lars R. Isaacson:

We request — what relief do I want?

Ruth Bader Ginsburg:

Right.

Lars R. Isaacson:

Mr. Puckett would like the plea agreement to be set aside and be allowed to take this case to trial.

Ruth Bader Ginsburg:

Which would expose him to a considerably greater penalty.

Lars R. Isaacson:

Potentially, yes.

Antonin Scalia:

Why wouldn’t it suffice to give your client everything that he was entitled to if the case were remanded to a different judge and the government were required to go before that judge and make the commitment that it undertook in the plea agreement?

Lars R. Isaacson:

We believe–

Antonin Scalia:

Why wouldn’t that be a perfectly satisfactory remedy?

Lars R. Isaacson:

–We believe that the action of the government, again, rendered the plea agreement itself void, without value, and he would — Mr. Puckett–

Antonin Scalia:

Well, you have to say that.

But let’s assume I don’t agree with that.

Let’s assume I agree with Justice Alito that his entry into it was voluntary and all that’s happened is that one of the commitments on the part of one of the parties has not been complied with.

Why isn’t it an adequate remedy for that problem to send it back to a new judge and have the government come before that judge and make the same commitment it was supposed to under the agreement?

Lars R. Isaacson:

–Certainly that is a remedy some circuits have used.

Why that is not effective, we believe the defendant should have the right to be able to choose.

When it reaches this level, the plea agreement is void.

John Paul Stevens:

May I ask essentially two questions.

You mentioned the fact that this is not — this is an unusual agreement, and that some of the provisions were negotiated and the record shows they were — they were deliberately undertaken.

It seems to me that this was probably a scrivener’s error.

The normal — most plea agreements would include a provision that if the defendant engaged in unlawful conduct, all bets are off.

And my hunch was that somebody just forgot to put the boilerplate language in the agreement.

Is that fair to say?

I can’t imagine the government negotiating an agreement that doesn’t include that clause.

Lars R. Isaacson:

I certainly can’t put myself on the sides back then.

I think it’s fair to say it’s unusual.

The government in its breach — sorry — in its brief indicated it could have included it in there.

Ruth Bader Ginsburg:

It did include it in the motion, didn’t they?

Lars R. Isaacson:

It was–

Ruth Bader Ginsburg:

Wasn’t there a motion–

Lars R. Isaacson:

–Yes.

Ruth Bader Ginsburg:

–for credit for acceptance of responsibility, and had as a condition that the defendant be law-abiding?

Lars R. Isaacson:

Yes, that was included in the motion filed the next day for the additional point, that is correct.

Ruth Bader Ginsburg:

So isn’t it odd that the — that these documents both meant to serve the same purpose, one has the provision for law-abiding conduct in the future and the other doesn’t?

Lars R. Isaacson:

Well, one is a plea agreement that is entered in open court with the defendant present with his attorney and the second is a motion filed by the United States attorney the day after.

So they are different.

Certainly they have different, I would suggest, importance.

John Paul Stevens:

But going back to my question, isn’t it a likely explanation for the defendant’s lawyer’s failure to object that he just didn’t realize this agreement didn’t have this normal provision in it?

Lars R. Isaacson:

I — I can’t.

As to whether — I would suggest that it is — this is a — normally, these are normally included in these agreements, I would suggest to you.

John Paul Stevens:

Right.

Lars R. Isaacson:

But I would suggest to you also that it was not included in this agreement, and since the government drafted it I don’t think we can just assume it should be there.

John Paul Stevens:

No, I understand that.

But the other thing I wanted to ask you: You keep using the term “void”.

Do our cases say that any breach of a plea agreement renders it void rather than subject to some kind of other remedy?

Lars R. Isaacson:

Well, if it is — I think the language of — of Brady — certainly a plea must stand unless it is induced by misrepresentation, unfulfilled or unfulfillable promises.

Recently in the Bousley, case: Statements in there can’t go; not good if it’s induced by misrepresentation; Machibroda–

John Paul Stevens:

But those are cases that say that the remedy is setting aside the — the guilty plea, but they don’t characterize the — the agreement as having become void, if I — if I remember correctly.

Lars R. Isaacson:

–Well, again, I am — citing from Machibroda: A guilty plea, if induced by promises or threats which would deprive it of a private or voluntary act are void.

John Paul Stevens:

Yes, but those — that goes to the integrity of the guilty plea, not to whether or not the underlying contract became void, I think.

Maybe I’m missing something.

Lars R. Isaacson:

Well, I — I think what we are saying is once the government takes its action, it deprives the plea of its voluntary character.

Antonin Scalia:

It doesn’t — it doesn’t retroactively render the government’s promise a misrepresentation.

Every time a — a party to a contract fails to comply with a contract, he hasn’t been guilty of fraud.

“Misrepresentation” would mean the government had no intention of complying with it when — when it entered into it, and you — you don’t assert that was the case, do you?

Lars R. Isaacson:

No, but I would suggest that Santobello again talks about the intent, whether or not — in that case there were two prosecutors who didn’t know what one — the other one was doing, and this Court said that’s not important; it is the integrity of the plea that’s important and the government’s breach thereof.

Anthony M. Kennedy:

Under the law of contracts I assume — I haven’t looked it up yet — that you can’t rescind for a nonmaterial breach.

A trivial breach doesn’t always allow recision.

And isn’t it trivial if the district court said: You know, I don’t care if the Attorney General of the United States and the Solicitor General himself both came into the court on their hands and knees begging me to do this.

Anthony M. Kennedy:

I wouldn’t do this.

I wouldn’t give you an increase.

Lars R. Isaacson:

Well–

Anthony M. Kennedy:

So it seems to me an immaterial breach, other than as to one level — and correct me if I am wrong.

I take it as to level one — or as to the third level, they need the recommendation before they have the authority to reduce.

Am I right about that?

Lars R. Isaacson:

–I’m sorry — I am missing — what are you talking about?

Anthony M. Kennedy:

There are some instances in which the — the prosecution must make the recommendation before the district judge has the authority to depart downward, am I correct?

Lars R. Isaacson:

I — I — I am sorry.

For the downward departure and acceptance of responsibility, they are different.

For the first two points, it can be done in the plea agreement.

The third has to be done by the prosecution.

Anthony M. Kennedy:

That’s right.

So — so this — this district judge, I take it, did not have the authority to go down by — by a third without the recommendation?

Lars R. Isaacson:

Well, the government filed a motion.

I don’t know if they officially had withdrawn it or not.

I know at sentencing they argued against it, so — I am not sure if the judge had the power to or not.

The motion was already on file.

The government had already asked for that.

Now, they changed their mind.

Anthony M. Kennedy:

Even as to the third level, the district judge said, you know, I will assume that they have made the argument.

I will assume they have made the argument.

I wouldn’t hear the — I — I wouldn’t grant — I wouldn’t follow the recommendation.

I am not going to depart downward even assuming the government — it seems to me that there is — the government’s breach is immaterial.

Lars R. Isaacson:

Well, in terms of materiality of the breach, in Santobello there are those exact words: The government is in a very poor position to talk materiality after they’ve breached the agreement.

Anthony M. Kennedy:

My reading of Santobello is the same as yours on that point, and it’s difficult for me to understand.

Ruth Bader Ginsburg:

There was part of this agreement that was honored.

In fact, the judge after having said that, I never heard of giving credit for responsibility to somebody who commits a crime in the interim, but he said: I understand there was an agreement to sentence at the low end, and that’s what I’m going to do.

Lars R. Isaacson:

That’s correct.

Ruth Bader Ginsburg:

So if you say what you want is a trial, the defendant would be exposed to not just the upper level; plus weren’t there add-ones in this case that the judge ordered to be served concurrently rather than consecutively?

Lars R. Isaacson:

Yes, there were three underlying Federal charges that he was on supervisory release for that the judge ran concurrently with the sentence in this case.

Samuel A. Alito, Jr.:

What would counsel say about a case in which it’s unclear whether there is a breach?

There is a factual dispute as to whether there was a breach.

Let’s say the government agrees that it will reserve the right to call all relevant facts to the attention of the sentencing judge, but won’t take a position on sentencing.

And the prosecutor in sentencing makes certain remarks that might be interpreted as taking a position or might be interpreted as simply calling facts to the judge’s attention.

Would it be your position that when a defendant hears that, the defendant can sit back and wait and see whether he or she is satisfied with the sentence and then after this sentence is imposed raise the issue of breach on appeal and not be subject to plain error, rather than calling it to the attention of the sentencing judge at the time when the — the potential breach could be adjudicated?

Lars R. Isaacson:

I think there are two parts to your question, Your Honor, if I could address them.

In regard to a de minimus breach of the plea agreement, we recognize that technical defects in a plea agreement may not always require automatic reversal.

However, the government must always fulfill completely the promises they have made in the agreement.

And that goes to the difference between a — a plea agreement is being different than a normal contract.

In a normal contract, you think of a — an Exxon merging with Mobil, things of that nature.

This is a situation where the government’s — the obligations in the plea agreement for the vast majority are on the defendant, what he has to do.

He gives up his rights.

He must cooperate, things of that nature.

As on page 51a shows, the government’s agreements are extremely small.

There’s only two paragraphs.

And that’s normally how it is.

Our position is if the government breaches its promises, that’s when it must be reversed.

Samuel A. Alito, Jr.:

I’m not sure that really answers my question.

Lars R. Isaacson:

Well–

Samuel A. Alito, Jr.:

Are you saying as to some errors there is a plain-error rule, in some breaches there is a plain-error rule, but not as to all breaches?

Lars R. Isaacson:

–No.

I’m — what I’m saying is the threshold of whether there is a breach or not — the question has been posed of whether or not every single breach is automatic reversal.

We — we recognize that there may be some that have absolutely no basis or do not really imply or go into what the government promised to do.

Because the government’s promises as a part of the plea agreement, again, are just two paragraphs of this case.

Our suggestion is when the government breaches what they promised to do, that’s when the automatic reversal–

Antonin Scalia:

So you are saying, if — if I understand you correctly, that even if at the trial your client’s lawyer had objected and had — and had said, Your Honor, the government promised to recommend, you know, a lower thing, what the trial judge would have to have said was, the plea agreement is invalid.

And the trial judge could not say, oh, yes, the government has to make that recommendation.

You are — you are saying it is invalidated by the mere fact of the government’s not having done it, right?

Lars R. Isaacson:

–Yes.

Antonin Scalia:

So no objection need to be made or can be made, right?

Lars R. Isaacson:

Well, certainly, we — we’d never suggest–

Antonin Scalia:

Wow.

Lars R. Isaacson:

–Well, Your Honor, it — it seems harsh and perhaps it is harsh, but the government has to abide by the contracts they make.

Anthony M. Kennedy:

Well, but I take it — you never really answered Justice Alito’s question.

I take it that the defendant and his counsel can knowingly recognize that an error is being committed, say nothing, listen to the sentence, and then object later.

That’s your position, yes or no?

Lars R. Isaacson:

For it to be reversible, yes.

Antonin Scalia:

Well, that’s inconsistent with the answer you gave me.

Lars R. Isaacson:

I’m sorry.

Antonin Scalia:

The answer you gave me is that automatically the guilty plea is washed out — automatically.

Lars R. Isaacson:

We — if the government breaches the plea agreement, yes.

Antonin Scalia:

It is automatically washed out?

Lars R. Isaacson:

Well, I would suggest–

Antonin Scalia:

And, therefore, he cannot — he cannot sit around and wait to see what happens.

What happens is — whatever happens, it’s invalid.

The plea agreement is no good.

You have to have a new trial.

Lars R. Isaacson:

–I would suggest that the word “void” may also be “voidable”.

Antonin Scalia:

Voidable — then your answer to me would be different.

It’s — it’s not void.

It’s voidable, so that he can play dog in the manger and wait and see what happens, and then if it’s in interest that — in his interest to void it, he does.

If it’s in his interest not to void it, he doesn’t.

Lars R. Isaacson:

Your Honor, these are not easy issues.

Certainly, defense attorneys should not ever sit on his hands and let these things go.

To take a chance and to just say, oh, we are going to do nothing and just sandbag, like is suggested by the government, I’m suggesting that is never going to occur.

John G. Roberts, Jr.:

It would not be cost-free for you, because if you just sit there and say, you know, the agreement is void, the government is going to say, well, fine, I will see you in court; and we will have a trial; and you are going to get twice as much as you would have gotten anyway.

You have some interest, since you entered the guilty plea, in going forward with the plea.

Lars R. Isaacson:

It’s absolutely — Mr. Puckett–

John G. Roberts, Jr.:

Well, but let’s put it this way.

John G. Roberts, Jr.:

Maybe this is the same question anyway.

Let’s say it is the same facts as we have here but instead of saying, I can’t do this, the judge says, I’m going to do this.

And, look, I think you are remorseful.

I’m going to give you three points.

And that’s all you agreed with the government.

The government says we’ll recommend it, and the judge says, well, you’re going to get it anyway.

I think you should get it.

The agreement has still been breached, right?

The government didn’t recommend.

Lars R. Isaacson:

–It has been breached.

John G. Roberts, Jr.:

So in that situation, you think you can withdraw the agreement?

Lars R. Isaacson:

I would suggest that it would be at the defendant’s option to do so.

The point that I’m trying to make–

John G. Roberts, Jr.:

Well–

David H. Souter:

But why — why should the defendant have the option to withdraw from an agreement when he got everything under the best possible circumstances that he could have expected?

Lars R. Isaacson:

–Because the government — well, we don’t know that, what the sentence would have been by the sentencing judge.

David H. Souter:

No, but we are talking about the Chief Justice’s hypothetical at this point.

And they — in his hypothetical, the sentencing judge says, I’m going to give you the three points; you are going to get everything that on the rosiest scenario you could have hoped for.

Why should he be able to withdraw his plea at that point?

Lars R. Isaacson:

Because the jurisprudence teaches that the result of the effect on the sentencing judge is simply irrelevant.

If the government breach–

David H. Souter:

In other words, your position is — is kind of a theoretical formalistic position, that — I’m not sure if this is the wrong words here — there is a metaphysical quality to the plea, and even though things turn out as well to him as he could possibly have expected had the agreement been kept punctiliously, if the government simply omits the words he can walk away from the plea?

I mean, that’s your position?

Lars R. Isaacson:

–I believe so, yes.

But there is a reason for it.

This Court has stated the government cannot breach the plea agreement.

That’s all we’re saying.

The power the government has in reducing the plea, the rights the defendants are giving up, it should be at the option of the defendant to decide.

David H. Souter:

Yes, but usually — I mean, the theory of relief in contract law depends upon relief from something.

And if, in fact, there is — there is no discernible damage that has been suffered, if on the other hand — again, taking the Chief’s hypothetical — there is an affirmative demonstration that no damage occurred, normal principles of contract would say there is nothing to give him relief from.

David H. Souter:

The law of contract is — is not a metaphysical construct.

Why should the law of plea agreements be?

Lars R. Isaacson:

I — I’m not suggesting it would be metaphysical.

I’m simply suggesting–

David H. Souter:

Well, I think you are.

I mean, you are saying even though he has come out with, you know, a rose in his mouth, he can still, if he is crazy enough, throw away the whole plea agreement.

Lars R. Isaacson:

–I think that suggests that the result on the judge has to do with the breach, what the government does.

The concept is, if the government breaches the plea agreement, the defendants should have the right to withdraw from the plea even if there is no effect on the sentence.

David H. Souter:

What I’m getting at — I think what we are all trying to get at — is in order to have a rule, an absolute rule like yours, we usually look for a good reason to have that rule.

And since we are talking about an agreement, the place to look for the good reason is in the consequences to the defendant.

And when the consequences are terrific, when they are the best that he could possibly have hoped for, there doesn’t seem to be a good reason to adopt your very theoretical construct of agreement.

Is there some reason that we are just not seeing?

Lars R. Isaacson:

Because it doesn’t occur.

I mean, the government could not cite a single case in which this–

David H. Souter:

Never mind what the government can cite.

I’m asking you if there is a good reason to adopt this absolute rule of yours.

Lars R. Isaacson:

–There is an absolute — the good reason is the defendant should get the promises the government has elicited for his giving up of his fundamental constitutional rights.

99.9 percent of the time that’s going to be adverse to the defendant, as it was in this case.

A possibly hypothetical situation where the judge would forego or ignore what the United States attorney says and give him acceptance points is so rare, as I suggest, to not really be–

John Paul Stevens:

May I ask this kind of conceptual question?

Is it your view that a breach of a plea agreement can never be concluded to be harmless error?

Lars R. Isaacson:

–Harmless error?

Yes, I — if it — well, harmless error if you are talking about structural error, I mean it’s a little different analysis.

John Paul Stevens:

I’m trying to get rid of the labels like “plain error” and “structural”.

But if in fact it’s totally harmless and everybody agrees it’s harmless, would the government still have to — or would there be an adverse consequence nevertheless?

Lars R. Isaacson:

Yes, I believe so.

John Paul Stevens:

So, there could never be harmless error, harmless breach of a plea agreement?

Lars R. Isaacson:

Yes, Your Honor.

Ruth Bader Ginsburg:

Why wouldn’t someone read what happened here as the defendant saying, well, I didn’t get the acceptance credit, but the judge is still sentencing me at the low end, and he’s still making the sentences run concurrently, so I think — why, if he doesn’t try to withdraw the plea, why isn’t it the logical assumption that he says I didn’t get the whole promise but I got part of it, and I’ll take it?

Lars R. Isaacson:

Well, I think sometimes the defendant might well do that.

Lars R. Isaacson:

I mean, it’s not–

Ruth Bader Ginsburg:

How do we know this one didn’t?

Lars R. Isaacson:

–Well, by certainly the appeal that we raised.

Certainly he stated on the record some questions or concerns about what overall had happened to him, and certainly he pursued this appeal.

John G. Roberts, Jr.:

–Thank you, counsel.

We will give you a couple minutes for rebuttal.

Lars R. Isaacson:

Thank you, Your Honor.

John G. Roberts, Jr.:

Ms. Schertler.

Lisa H. Schertler:

Mr. Chief Justice, and may it please the Court: When the government breaches a plea agreement, an objection made in the district court serves important purposes that relate to the functioning of Federal courts.

It permits the district court and the parties to determine whether a breach has occurred, and it also, in many cases, may permit an immediate cure of that breach to be administered, obviating the need for appellate review of the issue altogether.

A central purpose of the contemporaneous objection rule is to ensure that the district court proceedings are as free of error as possible.

And that purpose is served in this context, the plea breach context, as it is in others.

Rule 52(b) reinforces the contemporaneous objection rule by placing a heavier burden on the party who does not object in the district court to win relief on appeal.

The government’s submission to the court today is that the plain-error standard does apply to forfeited claims that a plea agreement has been breached, that the Olano framework should be followed, and that one component of the plain-error showing in this context should require a defendant who did not object to a breach in the district court to show a reasonable probability that the outcome of the proceeding was affected by the breach.

Anthony M. Kennedy:

Just to explore the issue of breach for a moment, suppose hypothetically, same facts here, but it is all vented and discussed and aired and objected to in the district court.

Lisa H. Schertler:

Yes, Your Honor.

Anthony M. Kennedy:

The defense attorney says, well, now, if you look at paragraph 8 and so forth, and the government says, well, Your Honor, well, he committed another crime.

And then the judge says — and we are not going to move for the recommendation.

And the judge says: I will assume that you made the recommendation, and I will just tell you right now I wouldn’t take the recommendation anyway.

I’m not going — I wouldn’t give a lowered sentence even if you made the objection.

What result?

Lisa H. Schertler:

Well, I think the result there is controlled by Santobello.

Anthony M. Kennedy:

Is it?

Because in Santobello there was no reason given for the prosecutor to violate the plea agreement.

Here there’s a good reason.

Can you distinguish Santobello on that basis?

Lisa H. Schertler:

I would — I would — I would seek to distinguish Santobello.

As we say in our brief, there seemed to have been multiple problems going on in Santobello.

And in — and it was unclear that the district court in Santobello even knew what the terms of the agreement were.

This court — a court in that situation would have been aware — would have sorted through what the terms of the agreement were.

Lisa H. Schertler:

Now — and — and, we don’t believe that there is a reason not to apply harmless error review in this context as there is in any other context.

David H. Souter:

Excuse me, were you — Justice Kennedy, were you through?

I’m sorry, I thought you started a question again.

The problem I have with the harmless error suggestion that you’ve made is this.

If the government does engage in some breach of the agreement, it seems to me the consequence is that an individual has given up a trial and as a consequence of that has given up liberty, without either the trial that he is entitled to or fulfillment of the conditions for giving up the liberty.

And isn’t there — isn’t there a very high value to be placed on the fact that nobody in the United States under the constitutional guarantees should be — should be sitting behind bars without either a conviction following full trial, invocation of whatever rights he wants to invoke, or a voluntary agreement to be behind bars?

And — and when neither of those conditions is fulfilled, don’t we have an error that as a matter of constitutional law cannot be regarded as harmless.

Lisa H. Schertler:

Well, there — certainly I agree, Justice Souter, that — and although there is distinguishable facts in Santobello, that that theme is present in Santobello as well.

And the Court there said that it was not — at the very least, the Court said when the government has not fulfilled its promise and an objection is raised and the defendant has suffered an adverse consequence that was somehow related to the government’s broken promise, that the Court is not going to find harmlessness simply based on the district court’s statement itself that it didn’t rely on what the government had said.

Now, we would submit, however, that there could be cases — and the Chief Justice’s hypothetical would have one of those — where even in a setting where an objection is raised, if the defendant receives the benefit that was the aim of the promise he secured from the government — for instance, if in Santobello the defendant there received the lowest possible sentence that he might have gotten — that in that circumstance, Santobello should not preclude harmless error review, and the defendant cannot be said to have — to be in jail having not received the benefit.

David H. Souter:

I — I think I would agree with you there because, by whatever means, the defendant has gotten everything the defendant bargained for.

Lisa H. Schertler:

Yes, Justice Souter.

David H. Souter:

It may have come by a more circuitous route, but he got it all.

Lisa H. Schertler:

Yes.

David H. Souter:

But in the case when, unlike the Chief Justice’s hypothetical, when we don’t know that, when we — the judge sort of keeps his thoughts to himself or herself, then don’t we have the — the problem of the — the individual behind bars, neither as a result of trial nor as a result of the deal that he made?

Lisa H. Schertler:

I agree that is — that is the strong suggestion of Santobello when there has been an objection made.

We would — we would submit to the Court that the analysis must differ when no objection is made in the district court.

David H. Souter:

Doesn’t — whether we accept that proposition or not that the analysis must differ, doesn’t that really depend on — on what value we place on the importance of the proposition that I started with?

If somebody’s behind bars, it’s either as a result of a valid conviction after trial or a voluntary agreement that says, yeah, I will stay there.

And if — if we place a very high value on the liberty interest — in — in retaining liberty except under those two conditions, then isn’t it fair to us — isn’t it sensible for us to say even in a plain-error situation, we are going to recognize this — this kind of prejudice, despite the fact that he didn’t object?

If we place a high value on the liberty interest, we wouldn’t accept your position; isn’t that fair?

Lisa H. Schertler:

The high value that the Court placed on the liberty interest in that situation would also have to be to the exclusion of other very important interests that are served by making sure that objections are raised in the district court.

David H. Souter:

You are right, there is no question about it.

If — we are saying we will take a — a less efficient process, a process less efficient perhaps even for getting at the truth, because we think the liberty interest is that important.

You are entirely right.

Lisa H. Schertler:

I — and — but I also would add on to that that I don’t think it is only efficiency, that that is the sole interest that would be sacrificed by an — by an absolutist approach, really, that Your Honor has suggested.

There also would be interests, fairness interests, that would be compromised by that rule, because just a rule that–

David H. Souter:

Will you give me an example?

Lisa H. Schertler:

–Yes, yes.

The rule that Petitioner proposes, for example, is that when a government breach occurs, one need not object in the district court, one may raise it on direct appeal and one automatically gets to elect to withdraw the plea.

Lisa H. Schertler:

That would create incentives on the part of defendants to — to withhold objections.

David H. Souter:

No — no question, but it seems to me that the answer to that is, it’s an incentive that would never come into play if the government kept its word.

Lisa H. Schertler:

Well–

David H. Souter:

So why — why should — why is the government really in a position to object to that?

Lisa H. Schertler:

–Because this Court has the — what it permits is manipulation of the system by — by counsel, really.

John Paul Stevens:

You’re talking about manipulation of the system.

I just wonder if the government wasn’t manipulating the system when they said we should grant cert in this case.

You did — you did agree that the cert should be granted.

Lisa H. Schertler:

Oh, we did acquiesce, yes.

Yes, Justice Stevens.

John Paul Stevens:

And are you taking the position that — that every case, that the absence of objection would always be controlling?

Lisa H. Schertler:

The–

John Paul Stevens:

For example, in this particular case, it seems to me that if the — if you had an objection and if the judge had agreed with the objection and said I will set aside the plea because of adopting the arguments of your opponent, I think the government would have appealed, and said that that decision is so wrong and it’s because it’s really harmless error.

I think here the real question is whether there’s harmless error available, rather than turning anything on whether or not an objection was made in the district court.

Lisa H. Schertler:

–Well, but this — this is the question on which the circuits had divided, and which is why we acquiesced in this case to sort through that question.

John Paul Stevens:

But in talking about the division of the circuits, do you think all breaches of — of plea agreements should be governed by precisely the same standard?

Or do you think there are varying facts in different cases?

Lisa H. Schertler:

Well, I think that the analysis of a breach in each case will differ and it first and it will in the — first and foremost depend upon what the standard of appellate review is and whether an objection has preserved, in which case it would be the government’s burden to show that a breach is harmless, or in the plain-error sentencings the — the burdens are reversed; and we think the — the ordinary rules codified in rule 52(a) and (b) apply in this context equally.

John G. Roberts, Jr.:

It’s clear, isn’t it, that the defendant in this case was in fact prejudiced?

The judge — Judge Sanders said it’s very rare, he said, that you would depart — or I forget whether it’s depart or–

Lisa H. Schertler:

So rare as to be unknown.

John G. Roberts, Jr.:

–So rare — I thought he said “rare to unknown”, “to be unknown” — you are right.

Lisa H. Schertler:

Yes.

John G. Roberts, Jr.:

But I suspect it’s probably rarer still for the government to recommend that.

So you can’t really say that he wouldn’t have done this or he certainly wouldn’t have considered it.

It’s one thing to say I’ve never heard of that.

It’s another thing when one of your colleagues is there saying, this is what you should do.

Lisa H. Schertler:

The — let me respond to that immediate point.

Which is — my response would be, yes, if the government were to recommend that he received acceptance of responsibility in this situation, that may be considered significant; but the district court judge would also know that it was in fulfillment of a promise that was made before renewed criminal activity occurred from jail.

And so, given that circumstance–

John G. Roberts, Jr.:

Yeah, but none of us can know what the judge would have done.

I mean, we have had cases here where the government’s recommendation of downward departures has been pretty surprising to me as well, and it’s because they were informants or whatever and they have engaged in some pretty bad conduct; and I don’t know what Judge Sanders would have done.

Lisa H. Schertler:

–And here under the plain error standard it was the defendant’s burden to show a reasonable probability that something different would have happened.

The court of appeals made findings on this record that the record showed that nothing different would have happened, even had the government complied with its promise.

Stephen G. Breyer:

Looking at this, why can’t we say the following?

Some circuits have said that they will never recognize plain error, when it’s a breach of a plea agreement.

That’s wrong.

It could be plain error like any other kind of a case, every other kind of issue.

Sure.

But the error here isn’t plain.

On the one hand, all they did, the promise was the government agreed to request that his sentence be placed at the lowest end, and they followed it.

In the other part they made no promise.

They simply agreed that he had demonstrated acceptance of responsibility.

And then what they did at the trial, they said,

“we don’t want him to get acceptance of responsibility at this point. “

Now, some people could argue that here is an implicit promise in paragraph 1, not to say something at the trial that is contrary to their recognition in paragraph 8.

That’s where it is.

On the other hand, you could argue that there is implicit, also, a promise not to implicitly do the first implicit, if what he has done in the meantime is commit another serious crime.

So we have two arguments, one of which says they committed error, and one of which says they didn’t commit error; and the argument turns on two implicit readings of paragraph 8.

Therefore, it is not plain.

End of case.

What’s wrong with that?

Lisa H. Schertler:

Well, the — the government has conceded, and I don’t–

Stephen G. Breyer:

Well, I mean, the government would like a whole lot of questions answered.

So what I don’t see is how the government can come here because they want a lot of questions answered, and get us to take the case, which I’m not sure was a wonderful idea; maybe it was.

But then we take the case, and now they want us to say, no, no, don’t take the obvious response to it because we would like you to answer five other questions.

So what I want to know is, what’s wrong with what I said?

Is that a possible outcome?

Lisa H. Schertler:

–That is a possible outcome, Justice Breyer, and clarification for — from this Court that the plain-error standard does apply to this type of error as it does to others would certainly help to resolve the conflict that does exist out there in the courts of appeal.

John G. Roberts, Jr.:

I may have gotten lost in the dialogue.

John G. Roberts, Jr.:

As you understand it, Justice Breyer’s suggestion was that you win, right?

You get plain error, and then sometimes you apply it and it comes out one way, and sometimes you apply it the other.

Lisa H. Schertler:

Yes.

Yes, Chief Justice.

John G. Roberts, Jr.:

So you are happy to go along that.

Lisa H. Schertler:

Yes.

The — it does not give the courts all of the guidance that would be helpful as to how to apply other components of the plain-error standard in this context.

John G. Roberts, Jr.:

But that’s a big difference, right?

As you said earlier, harmless error, the government has the burden; plain error, the defendant has the burden.

That’s certainly going to change how you approach however many different factual contexts.

Lisa H. Schertler:

Well, yes, Mr. Chief Justice.

I mean, what — the reason that this case seemed to us a good vehicle to address these questions is that they was agreement throughout the appellate process that there was an error that was plain and, therefore, it provides an opportunity to address — if the Court chooses, which it need not, but if the Court chooses — to address how the substantial rights aspect of the plain-error standard and discretionary aspect–

John Paul Stevens:

It seems to me that the government has tried to pick a case in which it has the strongest opportunity to win on the merits in order to have us decide a rule that really isn’t important in a lot of other cases, but it is totally unimportant in this case.

Lisa H. Schertler:

–Well, Justice Stevens, what one finds when one looks through a lot of these — when these cases are brought, there often is a dispute and a real — and a genuine dispute as to whether a breach has occurred or not.

And those cases, of course, do not allow exposition — explanation about the other components.

John Paul Stevens:

But don’t you think it would have been open to the government to make the argument that Justice Breyer has made and said there really wasn’t a breach here, at least an insignificant breach that should be ignored?

Lisa H. Schertler:

As we acknowledge in our brief, there might be arguments out there that there were implicit terms to this plea agreement that were breached by the defendant.

Those arguments were never made in the court of appeals in this case, and so we are accepting that record as a way–

Stephen G. Breyer:

They can only get — they can only get your breach if they find an implicit agreement.

The implicit agreement is that you will not tell the court that, in light of changes, paragraph 8 no longer describes the situation.

You didn’t breach paragraph 8, as taken literally.

You agree he had shown that acceptance of responsibility.

What you told the court was, now we don’t think he should have this acceptance of responsibility, which previously he had shown, because he’s committed another crime.

Those are the exact words you said to the court.

Now, he may have made an implicit not to do that.

On the other hand, that implicit promise may be negative by, you know, the other implicit acceptance of the fact that this applies only where we don’t commit another crime.

So I’m just saying this — I’m not saying you are even right.

I’m just saying, having those two arguments, it seems that you aren’t plainly wrong.

You aren’t plainly wrong.

So how do I get to the other questions if I believe that?

Stephen G. Breyer:

Do I say,

“Hypothetically if the error here were plain, which I think it isn’t, then I’d like to tell you where the burden of proof lies? “

By the way, if I happened to think that that’s whatever it is, then I will go into a few other things.

That’s really what I feel you are asking me to do because I don’t think it’s plain.

Maybe the other people think it’s plain.

Lisa H. Schertler:

–Well, I mean — as I’ve — as I’ve already indicated, having the Court state that the — Rule 52(b) applies here is a — is a — I think, a helpful–

Antonin Scalia:

I think it’s plain.

What about paragraph 9?

Are you ignoring paragraph 9?

Stephen G. Breyer:

You fulfilled paragraph 9, didn’t you?

Lisa H. Schertler:

–The — paragraph 9 indicates that the government agrees to request that Puckett’s sentence placed at the lowest end of the guideline levels deemed applicable by the court.

And there has been no claim, at any point in this proceeding, that that provision has been breached.

What happened at the sentencing was that the district court stated on the record: I know that there is an agreement in here that that the lowest end of the guideline is appropriate, and I intend to follow that.

John G. Roberts, Jr.:

I think it’s very clear that there has been a breach here.

And it’s not fanciful to say he felt remorse and then he went and did it again.

That happens all the time.

You know, when I have a rich dessert I shouldn’t have, I feel bad about it afterwards.

It doesn’t mean I will not do it again.

I mean, why isn’t that the case here?

Lisa H. Schertler:

Well, I — I guess that it’s a matter of some disagreement, but — I mean, we have — we have taken the position that this was a breach of the government’s agreement that he qualified for a three-level reduction in his offense level.

That was the–

John G. Roberts, Jr.:

And you can put that before the judge.

You are supposed to go there and say,

“Look, we agreed to recommend it and we do recommend it. “

You could say,

“And by the way, you should know that he’s gone out and done this again. “

But you most — you certainly prejudiced him by not doing what you said you would do.

Lisa H. Schertler:

–Well, we breached the agreement by not doing what we said we would do, and the question we would submit to the Court is whether, given the absence of an objection, Petitioner carried his burden of showing that we did prejudice him.

And the–

John G. Roberts, Jr.:

No, but isn’t it the fact that we can never know what Judge Sanders would have done if the government had what it said it would do.

John G. Roberts, Jr.:

And because — why shouldn’t you bear the burden of showing there is no prejudice when you can’t tell because you’re the one that breached the agreement?

Lisa H. Schertler:

–Because in the plain-error setting, this Court has made clear that the burdens shift and that, under the third component of that standard, it is the defendant’s burden, if he did not object, to show an effect on the outcome of the proceeding, that his substantial rights were violated.

And here — and I would note that the court of appeals made findings that the result would have been the same, and Petitioner in this Court has never challenged those findings on this record.

Stephen G. Breyer:

Can you say just for me, because I am changing a little bit here in light of that question, but what is it precisely that the government said it would do that it did not do?

Lisa H. Schertler:

The — paragraph 8 of the plea agreement indicates that the government–

Stephen G. Breyer:

What does it say?

What are the words that it says the government did not do?

Lisa H. Schertler:

–Well, we indicated to the district court that Petitioner did not qualify for acceptance of responsibility.

And paragraph 8 was a government agreement that he did qualify for acceptance of responsibility.

Stephen G. Breyer:

So he did agree.

“We agreed that he does qualify. “

And then when you got to the court, you said, now we don’t agree that he qualifies at this point.

Lisa H. Schertler:

That’s correct.

And there was — and there an intervening event, obviously, that affected the judgment, but because the explicit provision of this particular plea agreement, which I agree is atypical, as the government’s motion for the third point made clear, did not have a qualification in there.

And that — that is the base — I mean, I don’t mean to be arguing strenuously that the government did something wrong here, because there were — but the fact is, given the terms of this plea agreement, there — that is the basis for our concession that there was a breach.

Ruth Bader Ginsburg:

As a matter of practice among U.S. attorneys, we do have six and a half years at stake here, right?

That’s the difference between the two levels?

Why wouldn’t it be the appropriate thing for the U.S. attorney, the assistant U.S. attorney, to say,

“Judge, I want to call your attention to paragraph 8 of the plea agreement. “

“At the time we entered into it, we made that undertaking. “

And so then everybody is sure that the judge’s mind is focused on that.

Wouldn’t that be the better practice?

Lisa H. Schertler:

Absolutely, Justice Ginsburg, and if there had been an objection based on that provision of the plea agreement, that may have been very well what would have happened.

The breach could have been cured.

And the fact is that, in the absence of that objection, the breach was not cured when it could have been, and that is one reason — that is why it makes sense to apply the plain-error standard in this context.

David H. Souter:

Well, could the breach have been cured?

I mean, the point — it seems to me, the point at which the defendant would have known that the government had breached the agreement was when the government stood there before the court and said,

“In fact, he hasn’t accepted responsibility. “

“He went out and committed another crime while he was behind bars. “

It seems to me that that’s the point — and maybe this phrase occurred somewhere in the record — that that’s a bell that you can’t unring.

David H. Souter:

For the defendant to get up and object and said,

“Wait a minute, were you supposed to represent to the court that you agreed that I did accept responsibility. “

–to require the government to fulfill that undertaking at that point would have been ridiculous.

I suppose the U.S. attorney could have said,

“Oh, yes, he’s right, Judge. “

“We agreed that he accepted responsibility. “

But the U.S. attorney has already just said a moment before,

“He hasn’t. “

“We really don’t mean that at all. “

There’s no way, it seems to me, that there could have been a better outcome in a case like this, even if the objection had been contemporary.

Lisa H. Schertler:

Well, there would be more than one way to cure a breach such as this, if an objection had been raised in the district court.

One way would have been by the correction on the record that we have just discussed, but another way–

David H. Souter:

Which would have been silly.

Lisa H. Schertler:

–But if the defendant — and if the defendant said that, that would be a silly way to correct it.

It also could have been sent to another judge for resentencing, just as the Court in Santobello said, that a remedy could be accomplished.

Ruth Bader Ginsburg:

It was sent to another judge, that judge would still have the presentence report.

After all, it wasn’t the government that initiated reneging on the — if it was the — it was the presentence report.

And before the government said a word, the judge had read and was discussing the presentence report, which said, judge, earlier, we said you should give credit for acceptance of responsibilities, now we must tell you, you should not.

Lisa H. Schertler:

The probation officer said that.

Ruth Bader Ginsburg:

Yes.

Lisa H. Schertler:

Yes.

And I don’t think Petitioner — Petitioner even contends that he is entitled now — or he contends he is entitled to get out of this plea.

But taking the more typical remedies that this Court proposed as one possibility in Santobello, I don’t think Petitioner would say that a judge should not know that he did — that he engaged in subsequent criminal conduct.

That is information that any judge sentencing him must know about in order to fairly assess what sentence he should receive.

John G. Roberts, Jr.:

Maybe Judge Sanders would look at this kind of the way that we have been discussing it, and he would look and say, boy, it’s — it’s — he committed subsequent conduct, how can you recommend that I depart?

He says, but on the other hand, every plea agreement I have seen you always say if he commits subsequent conduct that is illegal, that all bets are the off.

You didn’t say that here, so I’m going to take the recommendation seriously.

I don’t think it’s — maybe I am repeating myself, but I don’t think it is at all clear that the result wouldn’t be different here.

Lisa H. Schertler:

Well — and again, I guess I would give the same response, that it — it is Petitioner’s burden to show a likelihood, a reasonable likelihood that it would have been different.

David H. Souter:

With respect, that is not what Olano says, is it?

David H. Souter:

The — the — the basic Olano standard is a — is a violation of substantial rights standard.

Lisa H. Schertler:

Yes, Justice Souter.

David H. Souter:

And one way that you could show a violation of substantial rights would be a — a demonstration that the outcome would have been different.

But another possibility of showing that violation is — is whether — and I know you don’t accept it, but it’s the one that I proposed earlier, there is a violation of substantial rights if somebody is sitting behind bars without having gotten there by the performance of an agreement that he made, or as a result of a trial.

And that, too, could satisfy the Olano formulation, could it not?

Lisa H. Schertler:

It could, Justice Souter.

And if the Court were to take that position, we would argue that there is still, under the plain-error standard, the fourth component, the discretionary component–

Stephen G. Breyer:

I know you want to — as I point out one other thing to you.

I think it’s a hard question, burden of proof and these other things, that I just turned the page, after the person, Ms. Simms, she’s the prosecutor, and she’s absolutely clear to me, others can disagree, that this judge knew just what the government had agreed to, and the prosecutor was saying that now things have changed.

And then the judge turns to the probation officer, and the probation officer says, just to reiterate what Ms. Simms said, the new offense, according to the guidelines of the guideline manual, prohibits any acceptance of responsibility.

Now, if that turns out to be right, of course, it couldn’t matter less whose burden of proof it is.

Lisa H. Schertler:

–It was not correct, as a matter of fact, and the defense attorney made that correction, and the — and the judge accepted that.

And if I could go back–

John G. Roberts, Jr.:

He wasn’t — was he convicted of this new crime?

Lisa H. Schertler:

–He — not at the time of these proceedings.

John G. Roberts, Jr.:

It was just an allegation, right?

Lisa H. Schertler:

That’s right.

Another — another defendant had pled guilty to this crime, and the factual statement supporting his plea had implicated Petitioner as having instigated the crime, suggested to–

John G. Roberts, Jr.:

Why did we assume anything anyway?

I assume he denies the allegations.

Lisa H. Schertler:

–He admitted the allegations to the probation officer, and that is what was reflected in the presentence report.

And if I could return to Justice Souter’s question about if the Court were to take the position that a form of substantial rights is affected in every case of a government breach of plea agreement, we would respectfully submit that as this Court analyzed a similar type of difficult question in Johnson and Cotton, that the fourth discretionary component of the standard should preclude relief or should at least give the district court, the court of appeals discretion to not grant relief where, as in this case, there has been no showing that there was an effect on the outcome, and, as the Court of Appeals found, an affirmative record that the outcome would have been exactly the same.

Thank you, Your Honors.

We would ask that the judgment be affirmed.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Isaacson, why don’t you take two minutes.

Lars R. Isaacson:

Thank you, Your Honor.

The problem that the Puckett panel had in the third prong of 52(b) they focused on whether or not there is prejudice at sentencing.

That was the focus of the Puckett panel.

That is why they said 52(b) plain error applied and was found in that case.

Lars R. Isaacson:

The problem with that is that Santobello clearly points out that prejudice to the trial judge, that the trial judge — what the trial judge would have done is simply not relevant.

That is why 52(b) cannot be applied in this case.

Secondly, when the government argues that there is no prejudice — you have to show prejudice at sentencing, the judge would have done something different, that is virtually an impossible standard.

Under 18 U.S.C. 355 — there are a number of factors a sentencing judge has to take into.

The idea — and there is many different factors they must look at, all of these different things.

The idea that a defendant can somehow show a judge would have come to a different result but for the government breach is an impossibility.

The final point I would make is, the argument the government is making now about prejudice, it would make no difference at all if the defendant had objected at the time.

If there is no effect on sentencing, it would not pass muster under plain-error or the harmless error standards.

So the next case that is going to come before this Court is when you have an objection, and then they’re going to say the exact same argument here.

We would ask you to reverse the decision of the Fifth Circuit.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.