United States v. Christopher Erwin , 765 F.3d 219 ( 2014 )


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  •                                         PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 13-3407
    _____________
    UNITED STATES OF AMERICA
    v.
    CHRISTOPHER ERWIN,
    Appellant
    ___________
    On Appeal from the United States District Court
    for the District of New Jersey
    (No. 3-12-cr-00364-001)
    District Judge: Hon. Freda L. Wolfson
    Argued: May 20, 2014
    ____________
    Before: McKEE, Chief Judge, CHAGARES, and
    NYGAARD, Circuit Judges.
    (Filed: August 26, 2014)
    ____________
    OPINION
    ____________
    Jeffrey M. Brandt, Esq. [ARGUED]
    Robinson & Brandt
    629 Main Street, Suite B
    Covington, KY 41011
    Attorney for Appellant
    Mark E. Coyne, Esq.
    Office of United States Attorney
    970 Broad Street, Room 700
    Newark, NJ 07102
    Norman Gross, Esq. [ARGUED]
    Office of United States Attorney
    Camden Federal Building & Courthouse
    401 Market Street
    Camden, NJ 08101
    Attorneys for Appellee
    CHAGARES, Circuit Judge.
    This case presents the novel question of what remedy
    is available to the Government when a criminal defendant
    who knowingly and voluntarily executed a waiver of right to
    appeal — and received valuable promises from the
    Government in return — violates his plea agreement by filing
    an appeal. Christopher Erwin pleaded guilty to conspiracy to
    distribute and possess with intent to distribute oxycodone, in
    violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C) and 
    21 U.S.C. § 846
    . His agreement included a waiver of right to
    appeal his sentence if it was within or below the advisory
    Sentencing Guidelines range that results from a total advisory
    United States Sentencing Guidelines (“U.S.S.G.”) offense
    level of 39. The Government agreed not to bring further
    criminal charges against Erwin in connection with the
    conspiracy, and it also agreed to seek a downward departure
    under U.S.S.G. § 5K1.1. The Government fulfilled its part of
    the bargain; Erwin, who challenges his within-Guidelines
    sentence on appeal, did not.
    For the following reasons, we conclude that Erwin’s
    appeal is within the scope of his appellate waiver, to which he
    knowingly and voluntarily agreed, and that he has failed to
    raise any meritorious grounds for circumventing the waiver.
    We further conclude that Erwin breached the plea agreement
    by appealing, and that the appropriate remedy for his breach
    is specific performance of the agreement’s terms: that is, the
    Government will be excused from its obligation to move for a
    downward departure. We will therefore vacate Erwin’s
    2
    judgment of sentence and remand for de novo resentencing in
    accordance with this opinion.
    I.
    From approximately January 2009 through December
    2010, Erwin managed a large-scale oxycodone distribution
    ring (the “Erwin Organization”) that operated throughout the
    State of New Jersey and elsewhere.                The Erwin
    Organization’s modus operandi was to obtain medically
    unnecessary prescriptions for oxycodone from licensed
    physicians Hassan Lahham and Jacqueline Lopresti, in
    Erwin’s name and others’ names, in exchange for cash.
    Erwin’s customers, posing as patients, filled the prescriptions
    at various pharmacies in New Jersey and New York. The
    conspiracy yielded hundreds of thousands of oxycodone
    tablets, which were illegally sold on the black market.
    On May 9, 2011, the Government filed a sealed
    criminal complaint against Erwin, Lahham, Lopresti, and
    nineteen others in the United States District Court for the
    District of New Jersey. The complaint charged each
    defendant with conspiracy to distribute and possess with
    intent to distribute oxycodone, a Schedule II controlled
    substance. On May 8, 2012, Erwin executed a written plea
    agreement with the Government in which he agreed to plead
    guilty to a one-count information charging him with the
    above-referenced conspiracy that would later be filed in the
    District Court.1 The Government, in turn, agreed not to bring
    further criminal charges against Erwin in connection with the
    conspiracy.
    Schedule A of the plea agreement set forth, inter alia,
    several stipulations addressing Erwin’s offense level under
    the advisory Sentencing Guidelines: (1) based on the quantity
    of oxycodone for which Erwin was responsible (6,912
    grams), his base offense level was 38, see U.S.S.G. §
    2D1.1(c)(1); (2) Erwin was subject to a four-level
    enhancement for his leadership role in the conspiracy, see id.
    1
    The information was filed on May 24, 2012. Erwin waived
    his right to indictment and entered his guilty plea that day.
    The information was later superseded to add a forfeiture
    count; Erwin consented in writing to being sentenced thereon.
    3
    § 3B1.1(a); and (3) Erwin qualified for a three-level
    downward adjustment for acceptance of responsibility, see id.
    § 3E1.1. In accordance with the above, the parties agreed that
    the total Guidelines offense level applicable to Erwin was 39.
    The parties further agreed that “a sentence within the
    Guidelines range that results from the agreed total Guidelines
    offense level is reasonable.” Appendix (“App.”) 15 ¶ 7.
    Paragraph 8 of Schedule A contained the following
    waiver of right to appeal:
    Christopher Erwin knows that he has and,
    except as noted below in this paragraph,
    voluntarily waives, the right to file any appeal, .
    . . including but not limited to an appeal under
    
    18 U.S.C. § 3742
     . . . , which challenges the
    sentence imposed by the sentencing court if that
    sentence falls within or below the Guidelines
    range that results from a total Guidelines
    offense level of 39. This Office [the United
    States Attorney for the District of New Jersey]
    will not file any appeal, motion[,] or writ which
    challenges the sentence imposed by the
    sentencing court if that sentence falls within or
    above the Guidelines range that results from a
    total Guidelines offense level of 39. The 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.
    The provisions of this paragraph are binding on
    the parties even if the Court employs a
    Guidelines analysis different from that
    stipulated to herein.       Furthermore, if the
    sentencing court accepts a stipulation, both
    parties waive the right to file an appeal . . .
    claiming that the sentencing court erred in
    doing so.
    
    Id. ¶ 8
    . Both parties reserved the right to “oppose or move to
    dismiss” any appeal barred by the above paragraph. 
    Id. ¶ 9
    .
    Erwin also entered into a written cooperation
    agreement with the Government. The agreement provided
    4
    that, if the Government determined “in its sole discretion”
    that Erwin substantially assisted in the investigation or
    criminal prosecution of others, it would ask the court to
    depart downward from the Guidelines range pursuant to
    U.S.S.G. § 5K1.1. Supplemental Appendix (“Supp. App.”)
    47. However, “[s]hould Christopher Erwin . . . violate any
    provision of this cooperation agreement or the plea
    agreement, . . . this Office will be released from its
    obligations under this agreement and the plea agreement,
    including any obligation to file [the] motion . . . .” Supp.
    App. 48 (emphasis added). “In addition, Christopher Erwin
    shall thereafter be subject to prosecution for any federal
    criminal violation of which this Office has knowledge . . . .”
    Id.     The plea and cooperation agreements “together
    constitute[d] the full and complete agreement between the
    parties.” Supp. App. 46. For the sake of brevity, we will
    refer to them collectively as the plea agreement.
    During the next several months, Erwin attended
    debriefing sessions at which he was “questioned extensively.”
    Supp. App. 53. In particular, he reviewed and explained
    documents critical to the Government investigation of the
    Erwin Organization, including his records, coconspirators’
    medical files, and prescriptions. Id. Erwin also agreed to
    testify against Lopresti and Lahham, influencing their
    decisions to plead guilty. Id. In light of Erwin’s “important
    and timely” assistance, the Government wrote a letter to the
    court on July 12, 2013, asking it to depart downward “from
    the otherwise applicable” Guidelines range and to consider
    Erwin’s cooperation “in mitigation of [his] sentence.” Supp.
    App. 54.
    The United States Probation Office’s Presentence
    Investigation Report (“PSR”), as revised on July 15, 2013,
    mirrored the parties’ stipulations as to Erwin’s offense level
    and determined that Erwin’s criminal history category was I.
    The PSR noted, however, that Erwin’s advisory Guidelines
    “range” was 240 months (20 years) “due to the statutory
    maximum.”2 PSR ¶ 187. A sentence of 240 months, for an
    2
    Pursuant to U.S.S.G. § 5G1.1(a), “[w]here the statutorily
    authorized maximum sentence is less than the minimum of
    5
    offender in criminal history category I, falls within the low
    end of the range resulting from offense level 38 and the
    middle of the range resulting from offense level 37. See
    U.S.S.G. ch. 5, pt. A (Sentencing Table).
    Erwin’s sentencing hearing was held on July 25, 2013.
    The District Court agreed with the parties and the PSR that:
    (1) Erwin’s base offense level based on the quantity of
    oxycodone attributable to him was 38; (2) Erwin was subject
    to a four-level enhancement for his leadership role in the
    conspiracy; and (3) Erwin qualified for a three-level
    downward adjustment for his acceptance of responsibility.
    Erwin’s total offense level of 39 and criminal history category
    of I yielded an initial Guidelines range of 262 to 327 months
    of imprisonment. The court noted that Erwin’s sentence was
    “capped at” 240 months “because of the statutory maximum.”
    App. 22. Citing its July letter to the court, the Government
    then moved for a five-level downward departure pursuant to
    U.S.S.G. § 5K1.1. The Government clarified that, to the
    extent there “may be some question as to where to start,” it
    was requesting a departure from offense level 39 to offense
    level 34, as opposed to from the statutory maximum of 240
    months. App. 24. Erwin did not object, and the court granted
    the Government’s motion. Erwin’s final Guidelines range
    was 151 to 188 months of imprisonment. After considering
    the factors under 
    18 U.S.C. § 3553
    , the court imposed a
    within-Guidelines sentence of 188 months, three years of
    supervised release, and a $100 special assessment.
    Erwin timely appealed, arguing that the District
    Court’s use of offense level 39 as its starting point for the
    downward departure was error because, when combined with
    criminal history category I, offense level 39 yields an
    advisory Guidelines range above the statutory maximum.
    The Government did not cross-appeal. It counters, however,
    that this Court should vacate and remand for de novo
    resentencing where it will seek a “modest increase” in
    Erwin’s sentence in light of his breach of the appellate
    waiver. Gov’t Br. 34.
    the applicable guideline range, the statutorily authorized
    maximum sentence shall be the guideline sentence.”
    6
    II.
    The District Court had jurisdiction over the
    prosecution of this criminal action pursuant to 
    18 U.S.C. § 3231
    . We have jurisdiction over Erwin’s appeal pursuant to
    
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a). Because the
    Government has invoked the appellate waiver in Erwin’s plea
    agreement, however, we will “decline to review the merits of
    [his] appeal” if we conclude that: (1) the issues raised fall
    within the scope of the appellate waiver; and (2) he
    knowingly and voluntarily agreed to the appellate waiver;
    unless (3) enforcing the waiver would “work a miscarriage of
    justice.” United States v. Grimes, 
    739 F.3d 125
    , 128–29 (3d
    Cir. 2014) (quotation marks omitted). “The validity and
    scope of an appellate waiver involves a question of law and
    is, therefore, reviewed de novo.” United States v. Wilson,
    
    707 F.3d 412
    , 414 (3d Cir. 2013).
    Erwin waived the right to file any appeal challenging
    his sentence, including but not limited to an appeal under 
    18 U.S.C. § 3742
    , “if that sentence falls within or below the
    Guidelines range that results from a total Guidelines offense
    level of 39,” with the caveat that both parties reserved the
    right to appeal the court’s determination of Erwin’s criminal
    history category. App. 15 ¶ 8. Erwin was sentenced to 188
    months of imprisonment, which is far below the 262- to 327-
    month Guidelines range that results from a total offense level
    of 39 and criminal history category of I. It is also below the
    240-month statutory maximum. Erwin does not challenge his
    criminal history category. His appeal fits squarely within the
    scope of the waiver. Moreover, as Erwin acknowledges, see
    Erwin Br. 25, the District Court fulfilled its “critical” role of
    ensuring that his waiver of appeal was knowing and
    voluntary. United States v. Khattak, 
    273 F.3d 557
    , 563 (3d
    Cir. 2001); see Fed. R. Crim. P. 11(b)(1)(N) (requiring that
    before accepting a defendant’s guilty plea, the court must
    inform the defendant of, and determine that he understands,
    “the terms of any plea-agreement provision waiving the right
    to appeal or to collaterally attack the sentence”).
    Erwin’s appellate waiver must therefore be enforced
    unless we identify the “unusual circumstance” of “an error
    amounting to a miscarriage of justice” in his sentence.
    7
    Khattak, 
    273 F.3d at 562
    . This determination depends on
    factors such as
    [T]he clarity of the error, its gravity, its
    character (e.g., whether it concerns a fact issue,
    a sentencing guideline, or a statutory
    maximum), the impact of the error on the
    defendant, the impact of correcting the error on
    the government, and the extent to which the
    defendant acquiesced in the result.
    
    Id. at 563
     (first alteration in original) (quotation marks
    omitted).
    Erwin contends that enforcement of the waiver would
    be manifestly unjust because the District Court applied the
    Government’s downward departure motion to an
    “inapplicable” Guidelines range, thereby depriving him of the
    “benefit of his plea bargain and the full five-level departure
    the [D]istrict [C]ourt agreed he deserved.” Erwin Br. 25–26.
    Erwin specifically argues that, because the statutory
    maximum (240 months) is less than the minimum of the
    Guidelines range resulting from offense level 39 and criminal
    history category I (262 to 327 months), the court should have
    departed downward from 240 months — which, when
    combined with his criminal history category, roughly equates
    to offense level 38. If the court had departed from offense
    level 38 to offense level 33, instead of from 39 to 34, Erwin’s
    final Guidelines range would have been 135 to 168 months
    instead of 151 to 188 months.
    Erwin raises two constitutional grounds for
    circumvention of the appellate waiver and a claim of
    procedural error, none of which have merit. Erwin first
    argues that the court violated the spirit of Apprendi v. New
    Jersey, 
    530 U.S. 466
     (2000), where the Supreme Court held
    that, under the Due Process Clause of the Fifth Amendment
    and the notice and jury trial guarantees of the Sixth
    Amendment, “[o]ther than the fact of a prior conviction, any
    fact that increases the penalty for a crime beyond the
    prescribed statutory maximum must be submitted to a jury,
    and proved beyond a reasonable doubt.” 
    Id. at 490
    . The
    statutory maximum for Apprendi purposes is “the maximum
    8
    sentence a judge may impose solely on the basis of the facts
    reflected in the jury verdict or admitted by the defendant.”
    Blakely v. Washington, 
    542 U.S. 296
    , 303 (2004) (emphasis
    omitted). Erwin pleaded guilty to conspiracy to distribute and
    possess with intent to distribute an unspecified amount of
    oxycodone, a Schedule II controlled substance. Erwin’s
    admission that he violated § 841(b)(1)(C) subjected him to a
    statutory maximum sentence of 20 years. His 188-month
    sentence amounts to less than 16 years and thus did not
    violate Apprendi.3
    Erwin’s second constitutional argument is that the
    District Court’s failure to depart to offense level 33 deprived
    him of his due process right to receive the full benefit of his
    bargain with the Government. Under Santobello v. New
    York, 
    404 U.S. 257
     (1971), “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
    .
    The Government in this case agreed to “move the sentencing
    judge,” pursuant to U.S.S.G. § 5K1.1, to depart from the
    otherwise applicable Guideline range if it determined in its
    sole discretion that Erwin provided substantial assistance.
    Supp. App. 47. The agreement cautioned that, “[w]hether the
    sentencing judge does in fact impose a sentence below the
    otherwise applicable guideline range is a matter committed
    3
    To the extent that Erwin challenges the court’s findings
    relevant to his initial Guidelines range, we have held that the
    constitutional rights to a jury trial and proof beyond a
    reasonable doubt “attach[] only when the facts at issue have
    the effect of increasing the maximum punishment to which
    the defendant is exposed.” United States v. Grier, 
    475 F.3d 556
    , 565 (3d Cir. 2007) (en banc). Because the advisory
    Guidelines do not “alter[] the judge’s final sentencing
    authority,” they do not have this effect and an error in their
    application consequently does not trigger Apprendi or its
    progeny. Id.; see also United States v. Smith, 
    751 F.3d 107
    ,
    117 (3d Cir. 2014) (holding that the Supreme Court’s
    decision in Alleyne v. United States, 
    133 S. Ct. 2151
     (2013),
    “did not curtail a sentencing court’s ability to find facts
    relevant in selecting a sentence within the prescribed statutory
    range”).
    9
    solely to the discretion of the sentencing judge.” 
    Id.
     Because
    the record is devoid of any indication that the Government
    promised it would specifically request a five-level downward
    departure, much less that the court would apply the departure
    to the statutory maximum, Erwin’s due process claim also
    fails.
    Erwin’s claim that the court committed procedural
    error fares no better.4 “[A] district court should begin all
    sentencing proceedings by correctly calculating the applicable
    Guidelines range.” Gall v. United States, 
    552 U.S. 38
    , 49
    (2007). Even assuming the District Court erred procedurally
    when it applied the downward departure to the 262- to 327-
    month range instead of to the statutory maximum, see
    U.S.S.G. § 5G1.1 & cmt., its arguably erroneous calculation
    would be “precisely the kind of ‘garden variety’ claim of
    error contemplated by [an] appellate waiver,” United States v.
    Castro, 
    704 F.3d 125
    , 141–42 (3d Cir. 2013) (quotation marks
    omitted). See United States v. Corso, 
    549 F.3d 921
    , 931 (3d
    Cir. 2008) (“[A]llow[ing] alleged errors in computing a
    defendant’s sentence to render a waiver unlawful would
    nullify the waiver based on the very sort of claim it was
    intended to waive.” (second alteration in original) (quotation
    marks omitted)); see also United States v. Price, 
    558 F.3d 270
    , 283–84 (3d Cir. 2009) (holding that there was no
    miscarriage of justice where the defendant claimed that the
    Government abused its discretion by refusing to request a
    three-level downward adjustment for acceptance of
    responsibility); United States v. Mabry, 
    536 F.3d 231
    , 243
    (3d Cir. 2008) (characterizing the defendant’s challenges to
    district court’s sentencing calculation as “insubstantial”
    because “[t]hey do not implicate fundamental rights or
    constitutional principles”).
    4
    We lack jurisdiction to review the extent of a district court’s
    downward departure. United States v. Torres, 
    251 F.3d 138
    ,
    151–52 (3d Cir. 2001). Erwin’s claim is reviewable because
    it is “premised on the theory that the [D]istrict [C]ourt
    misapplied the Guidelines.” United States v. Shaw, 
    313 F.3d 219
    , 222–23 (4th Cir. 2002); see United States v. Langford,
    
    516 F.3d 205
    , 212 (3d Cir. 2008).
    10
    Erwin’s sentence did not exceed the 240-month
    maximum sentence prescribed by statute, let alone the higher
    advisory Guidelines range of 262 to 327 months. Moreover,
    Erwin largely acquiesced in the claimed error by failing to
    lodge a contemporaneous objection. Khattak, 
    273 F.3d at 563
    . We cannot conclude that, under these circumstances,
    enforcing Erwin’s waiver would work a miscarriage of
    justice. His appeal is therefore barred by the appellate
    waiver.
    III.
    In circumstances where a defendant’s arguments on
    appeal are based on a valid appellate waiver, our ordinary
    procedure is to enforce the waiver by dismissing the
    defendant’s appeal, thereby affirming the defendant’s
    sentence. E.g., United States v. Stabile, 
    633 F.3d 219
    , 248
    (3d Cir. 2011). But the Government argues that merely
    dismissing Erwin’s appeal and affirming his sentence “would
    neither make the Government whole for the costs it has
    incurred because of Erwin’s breach nor adequately deter other
    cooperating defendants from similar breaches.” Gov’t Br. 16.
    Instead, the Government asks the Court to vacate Erwin’s
    sentence so that it can pursue the remedies specified in the
    breach provision of the plea agreement — that is, the
    opportunity to bring additional criminal charges against
    Erwin or to withdraw its § 5K1.1 motion. The Government
    indicates that, if granted that choice here, it would pursue the
    latter option. Gov’t Br. 17, 34. Erwin objects that the
    Government’s proposal “would, as a practical matter, end this
    Court’s review for miscarriage of justice, as defendants would
    be wary to appeal even in the most egregious cases of error.”
    Reply Br. 10.
    To address the Government’s argument, we examine
    three issues: (1) whether Erwin in fact breached his plea
    agreement; (2) if so, whether resentencing in accordance with
    the terms of the agreement is an appropriate remedy in this
    case; and (3) even if this relief is appropriate, whether the
    cross-appeal rule divests this Court of jurisdiction or authority
    to grant it.
    A.
    11
    “[P]lea agreements, although arising in the criminal
    context, are analyzed under contract law standards.” United
    States v. Castro, 
    704 F.3d 125
    , 135 (3d Cir. 2013) (quotation
    marks omitted). We have long exercised de novo review over
    the question of whether a Government breach has occurred.
    United States v. Warren, 
    642 F.3d 182
    , 187 n.6 (3d Cir. 2011)
    (citing United States v. Rivera, 
    357 F.3d 290
    , 293–94 (3d Cir.
    2004)). Because “a plea agreement necessarily works both
    ways,” Castro, 704 F.3d at 135 (quotation marks omitted), we
    more recently held that the same standards apply when
    analyzing a claim that a defendant has breached a plea
    agreement, United States v. Williams, 
    510 F.3d 416
    , 424 (3d
    Cir. 2007).
    In Williams, the defendant pleaded guilty to a
    narcotics offense pursuant to a written plea agreement. 
    Id. at 418
    . In the agreement, the parties stipulated as to Williams’s
    offense level and further agreed “not to seek or argue for any
    upward or downward departure or any upward or downward
    adjustment not set forth herein.” 
    Id. at 419
     (quotation marks
    omitted). Despite this promise, Williams sought downward
    departures under U.S.S.G. § 4A1.3 and Chapter 5, as well as a
    downward variance.          Id. at 419–20.       Rejecting the
    Government’s position that Williams’s requests were
    foreclosed by the terms of the plea agreement, id. at 420, the
    district court reduced Williams’s criminal history category
    and varied downward from the resulting range, id. at 420–21.
    The Government appealed, asking this Court to resolve “what
    standard should be applied when analyzing a claim that a
    defendant has breached a plea agreement.” Id. at 417.
    Because “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,” id. at 422–23, we held that
    the same standard of review applies in considering a
    defendant’s breach of a plea agreement as in a Government
    breach case — that is, “[w]e 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,” id. at 424. Further, “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 . . . .” Id.
    12
    “In determining whether [Erwin] 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.” Id. at 424–25. We need not draw
    any inferences here, however, because the relevant language
    is unambiguous. Paragraph 1 of Schedule A of the plea
    agreement provided that the parties “agree[d] to the
    stipulations set forth herein,” including those concerning
    Erwin’s offense level. App. 14 ¶ 1. The stipulations included
    a waiver of Erwin’s right to challenge his sentence, including
    via a direct appeal under 
    18 U.S.C. § 3742
    , “if that sentence
    falls within or below the Guidelines range that results from a
    total Guidelines offense level of 39.” App. 15 ¶ 8. Erwin’s
    188-month sentence is below the Guidelines range that results
    from an offense level of 39 and his undisputed criminal
    history category. Despite promising not to appeal from such
    sentence, he did precisely that.5 Erwin’s appeal therefore
    amounts to a breach6 of the plea agreement.
    5
    Erwin contended at oral argument that there was no breach
    because he merely waived the right to file an appeal as
    opposed to promised not to file an appeal. See, e.g., Oral
    Arg. Tr. 4:08–5:23, 7:46–8:25 (3d Cir. May 20, 2014); see
    also Erwin Supplemental Br. 1 n.1. Erwin has not proffered
    any principled basis for drawing this distinction, and common
    sense dictates that there is none. A “waiver” is defined as
    “the intentional relinquishment or abandonment of a known
    right.” United States v. Olano, 
    507 U.S. 725
    , 733 (1993)
    (quotation marks omitted). A “promise” is similarly defined
    as “a person’s assurance that the person will or will not do
    something.” Black’s Law Dictionary 1406 (10th ed. 2014).
    By waiving his right to appeal, Erwin relinquished that right;
    in so doing, he promised not to exercise it.
    6
    Erwin does not dispute that, if he breached the agreement by
    filing an appeal, such breach was material. Nor could he: the
    breach defeated the parties’ bargained-for objective and
    deprived the Government of a substantial part of its benefit.
    See Pittsburgh Nat’l Bank v. Abdnor, 
    898 F.2d 334
    , 338 (3d
    Cir. 1990); see also Total Containment, Inc. v. Environ
    Prods., Inc., 
    921 F. Supp. 1355
    , 1416–17 (E.D. Pa. 1995)
    (holding that the plaintiff’s lawsuit, which was filed despite a
    general release in the parties’ settlement agreement,
    13
    B.
    “[A] classic rule of contract law[] is that a party should
    be prevented from benefitting from its own breach.” Assaf v.
    Trinity Med. Ctr., 
    696 F.3d 681
    , 686 (7th Cir. 2012); see also
    United States v. Bernard, 
    373 F.3d 339
    , 345 (3d Cir. 2004)
    (contract law prohibits a defendant from “get[ting] the
    benefits of [his] plea bargain, while evading the costs”). This
    rule carries particular importance in the criminal context, as a
    court’s failure to enforce a plea agreement against a breaching
    defendant “would have a corrosive effect on the plea
    agreement process” by “render[ing] the concept of a binding
    agreement a legal fiction.” Williams, 510 F.3d at 422, 423.
    Given that our criminal justice system depends upon the plea
    agreement process, that result cannot be countenanced. Id. at
    423.7 As the Supreme Court explained in Blackledge v.
    Allison,
    the guilty plea and the often concomitant plea
    bargain are important components of this
    country’s criminal justice system. Properly
    administered, they can benefit all concerned.
    The defendant avoids extended pretrial
    incarceration and the anxieties and uncertainties
    of a trial; he gains a speedy disposition of his
    case, the chance to acknowledge his guilt, and a
    prompt start in realizing whatever potential
    there may be for rehabilitation. Judges and
    prosecutors conserve vital and scarce resources.
    The public is protected from the risks posed by
    those charged with criminal offenses who are at
    large on bail while awaiting completion of
    criminal proceedings.
    “constituted a material breach of the Settlement Agreement”),
    aff’d in part, vacated in part on other grounds, 
    106 F.3d 427
    (Table) (Fed. Cir. 1997); Maslow v. Vanguri, 
    896 A.2d 408
    ,
    423 (Md. Ct. Spec. App. 2006) (holding that the appellant’s
    appeal of the jury’s verdict was a material breach of the “no
    appeals” provision in the parties’ settlement agreement).
    7
    Of the 2,920 convictions in the district courts within our
    circuit in 2013, 2,780 (more than 95%) were by guilty plea.
    14
    
    431 U.S. 63
    , 71 (1977). “These advantages can be secured,
    however, only if dispositions by guilty plea are accorded a
    great measure of finality.” 
    Id.
     Appellate waivers exist
    precisely because they preserve the finality of judgments and
    sentences imposed pursuant to valid guilty pleas. United
    States v. Wiggins, 
    905 F.2d 51
    , 54 (4th Cir. 1990).
    Erwin’s plea agreement constituted a classic
    bargained-for exchange. Erwin agreed to plead guilty and to
    assist the Government in obtaining guilty pleas from his
    codefendants, conserving Government resources that would
    otherwise have been expended on his prosecution and those
    of his coconspirators. To ensure that prosecutorial resources
    would not be expended on him in the future, Erwin
    relinquished his right to appeal most aspects of his sentence.
    In return, the Government promised not to initiate additional
    criminal charges against Erwin for his role in the conspiracy,
    and it agreed to seek a § 5K1.1 departure if Erwin cooperated.
    Erwin received the full benefit of his bargain because the
    court accepted his guilty plea (resulting in the speedy
    disposition of his case) and granted the Government’s request
    for a downward departure (yielding a sentence more than four
    years below the statutory maximum). That Erwin received a
    shorter sentence than he would have in the absence of the
    bargain is evidenced by the court’s telling statement at
    sentencing that “but for” the Government’s motion, it “would
    have been happy” to impose a longer term. App. 49.
    In contrast to Erwin, who fully benefited from the plea
    agreement, the Government devoted valuable resources to
    litigating an appeal that should never have been filed in the
    first place. “Empty promises are worthless promises; if
    defendants could retract their waivers . . . then they could not
    obtain concessions by promising not to appeal. Although any
    given defendant would like to obtain the concession and
    exercise the right as well, prosecutors cannot be fooled in the
    long run.” United States v. Wenger, 
    58 F.3d 280
    , 282 (7th
    Cir. 1995). Erwin is no exception. He purposely exchanged
    the right to appeal for items that were, to him, of equal or
    greater value. Having reaped the benefits of his plea
    agreement, he cannot avoid its principal detriment — to put it
    colloquially, he cannot “have his cake and eat it too.” 
    Id. at 282
    . Under basic principles of contract law, “[d]efendants
    15
    must take the bitter with the sweet.” 
    Id. at 283
    ; see also
    United States v. Cianci, 
    154 F.3d 106
    , 110 (3d Cir. 1998)
    (“Under the law of this circuit, [a defendant] cannot renege on
    his agreement.”).
    “When 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.” United States v. Nolan-
    Cooper, 
    155 F.3d 221
    , 241 (3d Cir. 1998). However, “we
    have allowed for an exception when the circumstances dictate
    that there is only one appropriate remedy for the defendant.”
    Williams, 510 F.3d at 427; see, e.g., United States v.
    Badaracco, 
    954 F.2d 928
    , 941 (3d Cir. 1992) (holding that
    permitting withdrawal of the defendant’s plea would “be an
    empty remedy,” as he had already served much of his
    sentence); see also Nolan-Cooper, 
    155 F.3d at 241
     (noting
    that a court should not impose a remedy against a non-
    breaching party’s will). Similarly, we have observed that
    “when the government requests specific performance at the
    hands of a defendant’s breach [of the plea agreement], . . .
    resentencing under the terms of the executed plea agreement
    might be the only appropriate remedy.” Williams, 510 F.3d
    at 427–28; see Nolan-Cooper, 
    155 F.3d at 241
     (agreeing with
    the parties that “if we found a breach of the plea bargain, the
    case should be remanded for a full resentencing”).
    We agree with the Government that specific
    performance is warranted here, and, as in Williams, specific
    performance means de novo resentencing. As a general
    matter, “[s]pecific performance is feasible and is a lesser
    burden on the government and defendant.” United States v.
    Kurkculer, 
    918 F.2d 295
    , 302 (1st Cir. 1990), quoted in
    Nolan-Cooper, 
    155 F.3d at 241
    . Specific performance
    certainly is feasible where, as in this case, the plea agreement
    contained a detailed breach provision:
    Should Christopher Erwin . . . violate any
    provision of . . . the plea agreement . . . [the
    United States Attorney’s] Office will be
    released from its obligations under this
    agreement and the plea agreement, including
    any obligation to file a motion under U.S.S.G. §
    5K1.1 . . . .
    16
    Supp. App. 48 (emphases added). We previously held that a
    defendant’s breach of his plea agreement in advance of
    sentencing excused the Government from its obligation to
    move for a downward departure. United States v. Swint, 
    223 F.3d 249
    , 254 (3d Cir. 2000).8
    In summary, because Erwin’s breach of the plea
    agreement occurred post-sentencing, we will vacate his
    sentence and remand for resentencing where, in light of his
    breach, the Government will be relieved of its obligation to
    seek a downward departure.
    C.
    Unlike in Williams, where the Government appealed
    the judgment of sentence, the Government neither appealed
    nor cross-appealed in this case. We are therefore confronted
    by, and heard oral argument on, a question of first
    impression: whether the possibility of de novo resentencing
    is barred by application of the cross-appeal rule, which
    provides that “a party aggrieved by a decision of the district
    court must file an appeal in order to receive relief from the
    decision.” United States v. Tabor Court Realty Corp., 
    943 F.2d 335
    , 342 (3d Cir. 1991); see also United States v. Am.
    Ry. Express, 
    265 U.S. 425
    , 435 (1924) (“[A] party who does
    not appeal from a final decree of the trial court . . . may not
    attack the decree with a view either to enlarging his own
    rights thereunder or of lessening the rights of his adversary . .
    .”). We conclude that the cross-appeal rule does not apply
    8
    Erwin insists that the Government has “lost its discretion”
    not to request a downward departure, because it has already
    requested one. Reply Br. 11–12. While inventive, this
    argument is unpersuasive. The only reason the Government
    is seeking to withdraw a motion that it has already filed is
    because Erwin elected to breach his agreement after
    benefiting from the motion. Erwin’s interpretation would
    “eviscerate one purpose of the plea agreement,” namely, “to
    make him earn the downward departure motion.” Swint, 
    223 F.3d at 255
    .
    17
    and consequently does not bar the Government from seeking
    de novo resentencing.9
    First, the Government could not have filed a cross-
    appeal even if it wanted to do so. Congress has vested
    appellate jurisdiction in the Courts of Appeals for review of
    final decisions of the district courts. “It is axiomatic that only
    a party aggrieved by a final judgment may appeal.” Rhoads
    v. Ford Motor Co., 
    514 F.2d 931
    , 934 (3d Cir. 1975). The
    same is true of cross-appellants. See, e.g., Am. Gen. Life Ins.
    Co. v. Schoenthal Family, LLC, 
    555 F.3d 1331
    , 1343 (11th
    Cir. 2009) (“[A]n appellee is not entitled to cross-appeal a
    judgment in his favor.”); Great Am. Audio Corp. v. Metacom,
    Inc., 
    938 F.2d 16
    , 19 (2d Cir. 1991) (dismissing cross-appeal
    for lack of jurisdiction); see also United States v. Atiyeh, 
    402 F.3d 354
    , 358 (3d Cir. 2005) (articulating bases of
    jurisdiction over the Government’s cross-appeal). “A party
    who receives all that he has sought generally is not aggrieved
    by the judgment affording the relief and cannot appeal from
    it.” Deposit Guar. Nat’l Bank v. Roper, 
    445 U.S. 326
    , 333
    (1980).      This requirement does not derive from the
    jurisdictional limitations of Article III, but rather “from the
    statutes granting appellate jurisdiction and the historic
    practices of the appellate courts.” 
    Id.
    “The Federal Government enjoys no inherent right to
    appeal a criminal judgment . . . .” Arizona v. Manypenny,
    
    451 U.S. 232
    , 246 (1981). The grant of general appellate
    jurisdiction in 
    28 U.S.C. § 1291
     does not authorize such an
    appeal, 
    id.,
     and 
    18 U.S.C. § 3731
     (establishing, inter alia,
    appellate jurisdiction over a Government appeal from a
    district court’s order dismissing an indictment or granting a
    new trial), has no relevance here. See United States v. Ferri,
    
    686 F.2d 147
    , 151 (3d Cir. 1982). The sole source of
    authority for a Government appeal in this case would lie, if
    anywhere, in 
    18 U.S.C. § 3742
    . That statute permits the
    Government to appeal a defendant’s sentence where the
    sentence: (1) was imposed in violation of law; (2) resulted
    from an incorrect application of the Sentencing Guidelines;
    9
    In light of this conclusion, we do not resolve whether the
    cross-appeal rule is jurisdictional or a matter of practice and,
    if the latter, whether this case warrants drawing an exception
    to the rule.
    18
    (3) departed from the applicable Guideline range; or (4) was
    plainly unreasonable, if imposed for an offense where there is
    no applicable Guideline. 
    18 U.S.C. § 3742
    (b).
    The Government’s argument does not fall into any of
    these categories, as Erwin’s breach of the plea agreement
    occurred post-sentencing and was in no way sanctioned by
    the District Court. The District Court gave the Government
    everything it wanted with respect to Erwin’s sentence — that
    is, it imposed a judgment of sentence that resulted from
    offense level 39 and criminal history category I and further
    incorporated the Government’s § 5K1.1 motion. There was
    (and remains) no “sentencing error” for the Government to
    challenge for purposes of § 3742(b). It would be nonsensical
    to fault the Government for filing an appeal that we surely
    would have dismissed for lack of jurisdiction.10
    Moreover, the remedy of de novo resentencing neither
    enlarges the Government’s rights nor lessens Erwin’s. A
    10
    The Government could have moved to enforce the waiver
    and summarily affirm Erwin’s appeal pursuant to Third
    Circuit L.A.R. 27.4 rather than waiting to raise the issue in
    the ordinary briefing schedule.      See United States v.
    Goodson, 
    544 F.3d 529
    , 534 n.2 (3d Cir. 2008). The
    Government notes that it did not file such a motion in this
    case because it was engaged in negotiations with defense
    counsel regarding the decision to proceed with Erwin’s
    appeal in light of the waiver. Gov’t Br. 19 n.3. We
    encourage the Government to seek summary action under
    Rule 27.4 where possible and as early as possible, as doing so
    minimizes the amount of Government (and judicial) resources
    spent on appeals barred by appellate waivers. However, that
    the Government could have expended fewer resources is of
    no legal moment in this case: what matters is that Erwin
    breached the agreement, not how costly the breach was. In
    any event, the costs are not trivial when considered in the
    aggregate — in 2013 alone, nearly 50 motions to enforce an
    appellate waiver were filed within our circuit, the vast
    majority of which were granted. We are not confronted by,
    and therefore need not resolve, whether the Government may
    seek remedies other than summary affirmance of an appeal in
    a Rule 27.4 motion.
    19
    cross-appeal must be filed to secure a favorable modification
    of the judgment. See Am. Ry. Express, 
    265 U.S. at 435
    . As
    discussed supra, Erwin contends that the District Court erred
    in its initial Guidelines calculation. To remedy the error, he
    asks this Court to vacate his sentence and remand for a new
    sentencing hearing. Our decision to vacate Erwin’s sentence
    and remand for de novo resentencing does not lessen his
    rights, as we are giving him exactly what he asked for.
    Neither does our decision enlarge the Government’s rights:
    as the Government acknowledges, Erwin is free to argue not
    only that he is entitled to a variance, but also that the variance
    should be applied to the statutory maximum instead of to the
    initial Guidelines calculation. See U.S.S.G. § 5G1.1(a). Of
    course, the District Court may exercise its discretion to accept
    or reject any such argument pursuant to § 3553(a).
    The Supreme Court’s most recent decision dealing
    with the cross-appeal rule in the criminal context, Greenlaw
    v. United States, 
    554 U.S. 237
     (2008), is not to the contrary.
    The defendant in Greenlaw appealed as too long a 442-month
    sentence. 
    Id. at 240
    . The Government did not appeal or
    cross-appeal. 
    Id. at 242
    . However, to counter the defendant’s
    argument that his sentence was unreasonably long, the
    Government noted that the sentence should have been fifteen
    years longer because he was convicted of two violations of 
    18 U.S.C. § 924
    (c)(1)(A).11 
    Id.
     Relying on the plain error rule,
    the Court of Appeals for the Eighth Circuit vacated the
    sentence and instructed the district court to impose the
    statutorily mandated consecutive minimum sentence, which it
    did. 
    Id.
     at 242–43. The defendant petitioned for certiorari as
    to the following issue: “When a defendant unsuccessfully
    11
    Under § 924(c)(1)(C)(i), “[i]n the case of a second or
    subsequent conviction under this subsection, the person shall .
    . . be sentenced to a term of imprisonment of not less than 25
    years.” Any sentence for violating § 924(c) must run
    consecutively to “any other term of imprisonment,” including
    any other conviction under § 924(c). § 924(c)(1)(D)(ii). For
    the first § 924(c) offense, the district court imposed a five-
    year sentence under § 924(c)(1)(A)(i). As to the second §
    924(c) conviction, the district court erroneously imposed the
    ten-year term prescribed in § 924(c)(1)(A)(iii) for first-time
    offenses. 
    554 U.S. at
    241–42.
    20
    challenges his sentence as too high, may a [C]ourt of
    [A]ppeals, on its own initiative, increase the sentence absent a
    cross-appeal by the Government?” 
    Id. at 243
    .
    The Supreme Court held that it could not. It reasoned
    that “[e]ven if there might be circumstances in which it would
    be proper for an appellate court to initiate plain-error review,
    sentencing errors that the Government refrained from
    pursuing would not fit the bill” in light of § 3742(b)’s
    “dispositive direction.” Id. at 248. In so holding, the Court
    recognized the importance of providing notice to a criminal
    defendant that “on his own appeal, his sentence would be
    increased.” Id. at 252–53. In this case, unlike in Greenlaw,
    the Government did not deliberately disregard a sentencing
    error, and Erwin — whose entire appeal rests on the terms of
    his plea agreement — should have anticipated the possibility
    that he breached the agreement by appealing and thereby
    triggered the possibility of relief for his adversary. See
    United States v. Wells, 
    262 F.3d 455
    , 467 (5th Cir. 2001)
    (“[A] reasonable defendant would understand that his breach
    of the plea agreement would motivate the government to
    [withdraw leniency].”).12
    The Court of Appeals for the Seventh Circuit has held
    that a defendant’s breach of his appellate waiver provision
    permits the Government to seek specific performance of the
    plea agreement, notwithstanding the absence of a
    12
    In United States v. Harvey, 
    2 F.3d 1318
     (3d Cir. 1993), a
    pre-Greenlaw decision, the Government argued in response to
    the defendant’s sentencing appeal that the district court
    erroneously calculated the applicable base offense level as 22
    instead of 25. 
    Id. at 1326
    . The Government conceded, and
    we agreed, that its failure to file a cross-appeal precluded it
    from obtaining a sentence “more favorable” than that already
    imposed. 
    Id. at 1326, 1330
    . Our decision in Harvey is
    consistent with Greenlaw — and does not guide our decision
    today — because the Government similarly declined to
    exercise its discretion to correct a sentencing error below that
    it easily could have challenged on appeal.              Whereas
    “fundamental fairness” dictated an outcome favorable to the
    defendant in Harvey and Greenlaw, it dictates an opposite
    conclusion in this case.
    21
    Government cross-appeal. In United States v. Hare, 
    269 F.3d 859
     (7th Cir. 2001), the defendant was charged with three
    federal crimes and pleaded guilty to one; the Government
    dismissed the other two and promised to recommend a
    reduction in offense level in exchange for his cooperation. 
    Id. at 860
    . The defendant promised, among other things, not to
    appeal from the sentence — a promise that he subsequently
    breached. 
    Id.
     The Court of Appeals held that dismissal of
    Hare’s impermissible appeal would be an “incomplete
    response” because “the prosecutorial resources are down the
    drain.” 
    Id. at 862
    . But the court explained that there is
    another remedy: “[i]f the defendant does not keep his
    promises, the prosecutor is not bound either.” 
    Id.
     Namely,
    “the United States is free to reinstate dismissed charges and
    continue the prosecution.” Id.; see also United States v.
    Poindexter, 
    492 F.3d 263
    , 271 (4th Cir. 2007) (determining
    that the Government may argue that “it is no longer bound by
    the plea agreement because the defendant’s appeal amounts to
    a breach of that agreement”).
    The Supreme Court’s decision in Ricketts v. Adamson,
    
    483 U.S. 1
     (1987) is also instructive. The defendant agreed to
    plead guilty to second degree murder and to testify against
    two alleged coconspirators. 
    Id. at 3
    . While the defendant
    testified against the coconspirators in their initial trial, he
    refused to testify again when a retrial was ordered. 
    Id. at 4
    .
    The State filed a new information charging the defendant with
    first degree murder, and the defendant’s motion to quash the
    information on double jeopardy grounds was denied. 
    Id. at 5
    .
    The Arizona Supreme Court rejected the defendant’s double
    jeopardy claim, holding that the plea agreement “by its very
    terms waives the defense of double jeopardy if the agreement
    is violated.” 
    Id. at 6
     (quotation marks omitted). On federal
    habeas review, the Supreme Court agreed that the defendant’s
    breach of the plea agreement removed the double jeopardy
    bar to prosecution on the first degree murder charge. 
    Id. at 8
    .
    In so holding, the Court emphasized that “[t]he State did not
    force the breach; [the defendant] chose, perhaps for strategic
    reasons or as a gamble, to advance an interpretation of the
    agreement that proved erroneous.” 
    Id. at 11
    . Here too, Erwin
    made a calculated decision to advance an interpretation of his
    appellate waiver that proved erroneous. It would be unjust to
    permit him to escape the consequences.
    22
    Having determined that the cross-appeal rule does not
    apply under these circumstances, we finally consider the
    source of our authority to grant de novo resentencing. That
    authority can be found in 
    28 U.S.C. § 2106
    , which permits us
    to modify, vacate, set aside, or reverse any judgment
    “lawfully brought before [us]” for review. Section 2106
    further provides that we may remand the cause and direct the
    entry of such appropriate judgment, or “require such further
    proceedings to be had,” as may be just under the
    circumstances. “[I]n determining what justice does require,
    the Court is bound to consider any change, either in fact or in
    law, which has supervened since the judgment was entered.”
    In re Elmore, 
    382 F.2d 125
    , 127 & n.12 (D.C. Cir. 1967) (per
    curiam) (quotation marks omitted) (citing § 2106); see also
    Hormel v. Helvering, 
    312 U.S. 552
    , 557 (1941) (“There may
    always be exceptional cases or particular circumstances
    which will prompt a[n] . . . appellate court, where injustice
    might otherwise result, to consider questions of law which
    were neither pressed nor passed upon by the court . . .
    below.”).
    The validity of Erwin’s sentence was lawfully brought
    before us via Erwin’s direct appeal. See 
    18 U.S.C. § 3742
    (a).
    “When an appeal is taken from an order made appealable by
    statute, we have all the powers with respect to that order
    listed in 
    28 U.S.C. § 2106
    .” United Parcel Serv., Inc. v. U.S.
    Postal Serv., 
    615 F.2d 102
    , 107 (3d Cir. 1980).
    Since the judgment was entered, there has been a significant
    change in fact (Erwin’s breach of the plea agreement). As
    discussed at length above, de novo resentencing is not only
    just, but is also consistent with basic principles of contract
    law and the plain language of the plea agreement.
    Contrary to Erwin’s position, we do not believe that
    our holding will “end this Court’s review for miscarriage of
    justice.” Reply Br. 10. We will continue to review
    conscientiously whether enforcing defendants’ appellate
    waivers would yield a miscarriage of justice (as well as
    whether a waiver was knowingly and voluntarily entered into
    and whether the issues raised fall within the scope of the
    waiver) but, as discussed supra, any such defendant must
    23
    accept the risk that, if he does not succeed, enforcing the
    waiver may not be the only consequence.
    Accordingly, we will grant this relief pursuant to §
    2106.
    * * * * *
    “[B]oth the government and the defendant must fulfill
    promises made to achieve a plea agreement.” United States
    v. Forney, 
    9 F.3d 1492
    , 1500 n.2 (11th Cir. 1993). Yet, “[i]n
    what has become a common sequence, a defendant who
    waived his appellate rights as part of a plea bargain, and
    received a substantial benefit in exchange, has failed to keep
    his promise.” United States v. Whitlow, 
    287 F.3d 638
    , 639
    (7th Cir. 2002). We hold that, like any defendant who
    breaches a plea agreement in advance of sentencing, a
    defendant who breaches his plea agreement by appealing
    thereby subjects himself to the agreement’s breach provision.
    The breach provision in this case permits the Government to
    withdraw its motion for a downward departure. To that end,
    we will vacate and remand Erwin’s judgment of sentence.
    Consistent with our precedent, Erwin will be resentenced by a
    different district judge than the one who presided over the
    now-vacated sentence. See Nolan-Cooper, 
    155 F.3d at 241
    ;
    see also Williams, 510 F.3d at 428.13
    IV.
    For the foregoing reasons, we will vacate Erwin’s
    judgment of sentence and remand to the District Court for
    resentencing before a different judge.
    13
    Our precedent compels assigning the case to another judge
    for resentencing “irrespective of the fact that the need for
    resentencing . . . is not attributable to any error by the
    sentencing judge.” Nolan-Cooper, 
    155 F.3d at 241
    . We
    emphasize that the reason for the reassignment in this case is
    not due to any error on the sentencing judge’s part and that
    we have no doubt she could resentence Erwin fairly.
    24