United States of America v. Timothy Beston, Jr.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2186
___________________________
United States of America
Plaintiff - Appellee
v.
Timothy Beston, Jr.
Defendant - Appellant
____________
Appeal from United States District Court
for the District of North Dakota - Eastern
____________
Submitted: February 16, 2022
Filed: August 8, 2022
____________
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Timothy Beston, Jr. pled guilty to one count of malicious mischief, in
violation of 18 U.S.C. §§ 1363, 1153, for driving a stolen vehicle into a lake on the
Turtle Mountain Indian Reservation in North Dakota. The district court sentenced
Beston to 21 months imprisonment and 3 years supervised release, and it ordered
him to pay restitution totaling $30,845.50. On appeal, Beston challenges the
restitution amount as violative of the Mandatory Victims Restitution Act (MVRA)

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and asserts that the government breached his plea agreement. The government
moved to dismiss his appeal, citing the waiver of appellate rights in the plea
agreement. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§§ 3664(o)(1)(B), 3742(a), we deny the government’s motion and vacate the order
of restitution.
I.
On March 31, 2020, Bureau of Indian Affairs (BIA) law enforcement received
a report of a vehicle driving erratically on the Turtle Mountain Indian Reservation.
Law enforcement responded and observed the vehicle but lost track of it after the
driver shouted and sped off. Law enforcement subsequently located the vehicle in
Lake Schutte. The driver, later identified as Beston, and a female passenger had fled
on foot. A cell phone linked to Beston was found near the vehicle. Law enforcement
identified the vehicle as a 2019 Nissan Rogue and determined that it had been stolen
from the Gateway Chevrolet dealership in Fargo, North Dakota. The vehicle had
visible front-end damage, though the record does not reflect whether this damage
was present before the vehicle entered the lake. A collision center later found
damage to the vehicle’s front bumper, cooling system, air conditioner, hood, fender,
electrical system, front suspension, and restraint systems. Law enforcement
believed that Beston received the vehicle earlier in the month from another
individual who had stolen several vehicles in the Fargo-Moorhead area. The record
does not reflect whether Beston knew the vehicle was stolen.
A federal grand jury charged Beston with one count of theft in Indian country
and one count of malicious mischief. Beston entered a guilty plea to the malicious
mischief count pursuant to a written plea agreement. The plea agreement contains a
promise by the government to make a non-binding recommendation at sentencing
that Beston be ordered to pay $16,950 in restitution. Beston acknowledged in the
plea agreement that the district court was required to order restitution, and he agreed
to pay restitution as may be ordered. Beston also acknowledged and agreed that the
district court would order him to make restitution for all loss caused by his conduct.

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The plea agreement also contains an express “Waiver of Appeal” provision, which
provides:
Defendant acknowledges having been advised by counsel of
Defendant’s rights to appeal the conviction or sentence in this
case . . . and to challenge the conviction or sentence collaterally
through post-conviction proceedings . . . . Defendant understands these
rights, and in exchange for the concessions made by the United States
in this plea agreement, Defendant hereby knowingly and voluntarily
waives these rights, except as specifically reserved herein. [1]
Defendant’s waiver of these rights includes, but is not limited to, a
waiver of all rights to appeal or to collaterally attack: Defendant’s
conviction or sentence . . . [and] any assessment, restitution, or
forfeiture order . . . .
R. Doc. 23, at 7. At the change of plea hearing, the district court engaged in a
colloquy with Beston about his guilty plea and plea agreement. The district court
confirmed that Beston understood that it had to order restitution and that the
government had agreed to recommend restitution in the amount of $16,950. The
district court also referenced the plea agreement’s appeal waiver and confirmed
Beston’s understanding that he would be “waiving [his] right to appeal in this
matter.” The district court asked if Beston had “any questions about [his] waiver of
[his] right to appeal,” and Beston answered no. Beston affirmed that he had read
and understood the plea agreement. Beston ultimately entered a guilty plea, which
the district court accepted, finding that Beston was aware of the consequences of
pleading guilty and that his plea was knowing and voluntary.
Prior to sentencing, the United States Probation Office prepared a Presentence
Investigation Report (PSR). The PSR calculated Beston’s United States Sentencing
Guidelines range as 18 to 24 months imprisonment. The PSR recommended a
restitution order totaling $30,845.50, encompassing Motors Insurance Corporation’s
restitution request of $24,345.50 and Gateway Chevrolet’s restitution request of
1 The rights expressly reserved within the plea agreement are not at issue on
appeal.

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$6,500 (for its $5,000 deductible and $1,500 recovery fee). A victim impact
statement attached to the PSR indicated that Motors Insurance Corporation paid
Gateway Chevrolet $24,345.50 on its theft-of-vehicle claim.
At the sentencing hearing, Beston objected to the difference between the
restitution amounts outlined in the plea agreement and PSR. Beston argued that the
PSR restitution amount was based on the value of the vehicle when it was stolen
from Gateway Chevrolet and did not represent the actual loss caused by Beston’s
conduct, which Beston believed to be $16,950. Beston also mentioned the parties’
“agreed upon amount” in the plea agreement. In response, the government explained
that the plea agreement restitution amount was based on “information that we
received from Gateway [Chevrolet] at the time” but “admittedly did not take into
account the insurance company or the towing bill. So that’s something that’s
partially my fault and I admit that. But the case law does indicate that victims
deserve to be made whole.” The government acknowledged Beston’s “argument
and concerns” but continued to explain why the PSR amount was higher, noting
“again I didn’t contemplate the insurance company when I wrote in that restitution
figure.” The government also speculated that, if the stolen vehicle had not been
driven into the lake, it would not have been damaged to the same extent. The
probation officer then shared that the PSR amount was based on information
provided by Gateway Chevrolet to the government. Beston concluded by reiterating
that the parties had agreed on the restitution amount of $16,950 in the plea
agreement. However, at no point during sentencing did the government recommend
the $16,950 amount, and Beston never objected to the government’s failure to do so.
Ultimately, the district court acknowledged the plea agreement’s provision requiring
the government to recommend the $16,950 amount but overruled Beston’s objection
to the PSR restitution amount and ordered $30,845.50 in restitution. The district
court also sentenced Beston to 21 months imprisonment and 3 years supervised
release.

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II.
Before we can reach the disputed legality of the district court’s restitution
order, we must determine whether the government breached the plea agreement such
that Beston’s appeal may proceed. Beston argues that the government breached the
plea agreement by failing to recommend the $16,950 restitution amount at
sentencing and instead advocating for the higher amount set forth in the PSR. Beston
seeks remand for specific performance of the plea agreement. See United States v.
Kelly, 18 F.3d 612, 615-16 (8th Cir. 1994) (“When the government fails to fulfill
the terms of a plea agreement, an unsatisfied defendant may seek specific
performance or may seek to withdraw his plea.”). The government denies breaching
the plea agreement and asks this Court to dismiss Beston’s appeal based on the plea
agreement’s appeal waiver.
“‘If the government breached the plea agreement, [the defendant] may
proceed with his appeal despite the appeal waiver.’ Accordingly, ‘the appeal waiver
does not prevent us from reviewing [the] claim that the plea agreement was
breached.’” United States v. Brown, 5 F.4th 913, 915 (8th Cir. 2021) (alterations in
original) (citations omitted). However, we are limited to plain-error review because
Beston failed to object to the government’s alleged breach below and instead raises
this argument for the first time on appeal. See United States v. Sayles, 754 F.3d 564,
568 (8th Cir. 2014). To prevail on plain-error review, Beston must show:
“‘“(1) error, (2) that is plain, and (3) that affects substantial rights.”’ ‘If all three
conditions are met, we may remedy the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”’” United States v. Lovelace,
565 F.3d 1080, 1087 (8th Cir. 2009) (citations omitted).
We first consider whether the government breached the plea agreement.
“When a guilty plea is induced by an agreement, the government must abide by its
terms.” Id. “[I]n determining whether the government has fulfilled its obligations
under a plea agreement, we look to the agreement’s provisions.” United States v.
Kramer, 12 F.3d 130, 131 (8th Cir. 1993). “If the government ‘actively advocate[s]

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for an outcome different from the one it had promised’ to seek, it breaches the plea
agreement.” United States v. Pierre, 912 F.3d 1137, 1142 (8th Cir. 2019) (alteration
in original). Here, Paragraph 18(b) of Beston’s plea agreement provides: “At
sentencing, the United States will . . . [r]ecommend that Defendant be ordered to pay
restitution in the amount of $16,950.” At the sentencing hearing, however, the
government never made this express recommendation. References by the district
court and Beston to Paragraph 18(b) do not excuse the government’s missing
recommendation. In United States v. Helper, this Court found no plain error breach
by the government for failing to reiterate at sentencing its sentencing
recommendation contained in a defendant’s plea agreement. 7 F.4th 706, 710 (8th
Cir. 2021). Helper noted that the district court had twice stated its understanding of
the government’s recommendation. Id. Helper is distinguishable, however, because
it concerned a plea agreement lacking any explicit requirement that the government
reiterate its recommendation at the sentencing hearing, unlike Beston’s plea
agreement. See id. What the government specifically promises in a plea agreement
serves as valuable consideration for a defendant’s guilty plea, even if the
government’s promises do not bind the district court. See United States v. Has No
Horses, 261 F.3d 744, 750 (8th Cir. 2001) (“[T]he consideration for [defendant’s]
agreement was the government’s recommendation of a reduction for acceptance of
responsibility, not that [defendant] would receive such a reduction.”).
Further, “taking a holistic view of the [g]overnment’s plea-related conduct,”
Brown, 5 F.4th at 917, the government’s comments at sentencing make its failure to
abide by its promise inexcusable, as it effectively advocated for the higher restitution
amount. The government explicitly disagreed with Beston’s reasoning in support of
the lower amount. The government claimed to have made a mistake in its calculation
of the lower amount and indicated that case law supported the higher amount. The
government urges that “a less than enthusiastic recommendation will not ordinarily
constitute a breach.” United States v. Jeffries, 569 F.3d 873, 876 (8th Cir. 2009).
While true, the government nevertheless failed to meet its agreed-upon obligation
simply to make the recommendation. See id. The government also emphasizes its
duty of candor to the court to justify its reference to case law in support of the higher

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amount, but this duty does not excuse the government’s lack of “meticulous fidelity
to the plea agreement we require.” Brown, 5 F.4th at 916. Accordingly, we agree
with Beston that the government breached the plea agreement and that its breach
satisfies the first two requirements of the plain error test. See Lovelace, 565 F.3d at
1087-88 (explaining that government’s breach of plea agreement “satisfies the first
two requirements of the . . . plain error test”).
We next consider whether the government’s breach of the plea agreement
affected Beston’s substantial rights. See id. at 1088 (“Although the government
breached the plea agreement, under the third step of the plain error test [defendant]
must show that the breach affects his substantial rights.”). Beston “must show a
‘reasonable probability, based on the appellate record as a whole, that but for the
error he would have received a more favorable sentence.’” Id. (citation omitted).
The government actively undermined the lower restitution amount before the district
court announced its restitution decision. Not only did the government here fail to
make the agreed upon recommendation, but it also gathered information to defeat
the plea agreement restitution amount, gave the information to the probation officer,
who included it in the PSR, and argued that the district court ought to order a higher
amount. While the gathering of information and the sharing of that information with
the probation officer and district court alone did not breach the plea agreement, we
highlight how the government’s gathering and sharing of information accompanied
its advocacy of the higher amount as evidence of how the government’s breach may
have impacted the district court’s restitution award.
Even though the government advocated for the higher amount at sentencing,
Gateway Chevrolet, Motors Insurance Corporation, and the government all failed to
justify the $24,345.50 figure. Neither Gateway Chevrolet nor Motors Insurance
Corporation adequately explained how the amount was calculated. The victim
impact statement included an “Explanation of Claim Payment,” which identified
theft of vehicle as the cause of loss, and a “Loss or Damage Statement,” which
revealed that the net settlement Motors Insurance Corporation paid Gateway
Chevrolet was based on the manufacturer’s invoice price of the vehicle. However,

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as Beston mentioned at sentencing, he was not being sentenced for theft and his
criminal activity occurred after someone else stole the vehicle. The government
likewise failed to adequately explain how the $24,345.50 figure was calculated. The
government shared that the plea agreement amount “was based upon the figure that
Gateway [Chevrolet] informed us was the value of the vehicle,” which had a sticker
price of $16,950. The government admitted that Motors Insurance Corporation later
“com[ing] forward with the $24,000 [wa]s concerning,” yet provided no further
detail as to why it advocated for the higher amount, apart from the new knowledge
that Motors Insurance Corporation had settled a claim for the vehicle’s theft. The
government offered no explanation for why restitution should be based on Motors
Insurance Corporation’s claim payment, presumably reflecting the manufacturer’s
invoice price, rather than the vehicle’s sticker price.
The district court never stated that it would have ordered the higher amount
regardless of the government’s comments at sentencing or promise in the plea
agreement to recommend the lower amount. Cf. United States v. Smith, 584 F.3d
1127, 1129 (8th Cir. 2009) (“The district court . . . specifically indicated that the
government’s hint, if it was one, as to the sentence that it actually preferred had had
no influence on the sentence that the court ultimately fixed, and it gave reasons.”).
The dissent correctly recognizes that the district court was not bound to order the
lower amount in the plea agreement “[n]o matter what the prosecutor said,” but the
dissent underestimates how the district court may have relied on the government’s
advocacy for the higher amount. We conclude that Beston has shown a reasonable
probability exists that the district court would have ordered the lower restitution
amount but for the government’s breach of the plea agreement.
We agree with Beston that the government’s breach “seriously affect[ed] the
fairness” of the district court proceedings, thus allowing us to remedy its error. See
United States v. Keller, 413 F.3d 706, 710 (8th Cir. 2005) (citation omitted). “Plea
agreements are ‘an essential component of the administration of justice,’ and fairness
is presupposed in securing such agreements.” United States v. Mitchell, 136 F.3d
1192, 1194 (8th Cir. 1998) (citation omitted). Here, the government’s inexcusable

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breach of the plea agreement undermined judicial fairness. We therefore decline to
enforce the plea agreement’s appeal waiver.
III.
Beston claims that the district court failed to follow the required process
established in the MVRA to calculate a restitution award. In describing the district
court’s alleged failure, Beston highlights the lack of evidence presented by the
government as to the amount of actual loss caused by his conduct. We review a
district “court’s decision to award restitution for abuse of discretion and its findings
as to the amount of loss for clear error.” United States v. Clausen, 949 F.3d 1076,
1078 (8th Cir. 2020). “To the extent the district court interpreted the [MVRA] to
determine its obligations in awarding restitution, we review those interpretations de
novo.” United States v. Frazier, 651 F.3d 899, 903 (8th Cir. 2011). “The
government bears the burden of proving the amount of restitution based on a
preponderance of the evidence.” Id.
Before we reach the merits of Beston’s argument, we address two procedural
points raised by the government. First, aside from the plea agreement’s appeal
waiver, the government claims that Beston waived his right to challenge the district
court’s restitution order in a separate provision of the plea agreement. Paragraph 20
of the plea agreement states in relevant part, “Defendant agrees to pay restitution as
may be ordered by the Court. Defendant acknowledges and agrees that the Court
will order Defendant to make restitution for all loss caused by Defendant’s
conduct . . . .” The government relies on United States v. Lester, which found that
a defendant’s agreement “to pay any restitution ordered by the District Court” barred
his appeal because “a defendant’s agreement to pay the restitution that a district court
orders is binding.” 200 F.3d 1179, 1179 (8th Cir. 2000). The dissent in Lester
posited, “a plea agreement undertaking ‘to pay any restitution ordered by the District
Court’ is not a knowing waiver of the right to appeal an unlawful restitution order.”
Id. at 1180 (Loken, J., dissenting). Subsequent cases in this circuit reviewing plea
agreements that lack an express agreement to pay “any restitution” reflect the

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dissenting view in Lester. See, e.g., United States v. Polukhin, 896 F.3d 848, 852
(8th Cir. 2018) (“[A] willingness to pay whatever restitution is lawfully ordered is
not inconsistent with reserving a right to appeal the lawfulness of a restitution
order.”); United States v. Hansmeier, 988 F.3d 428, 439 (8th Cir. 2021) (noting plea
agreement did not contain promise to pay “any restitution ordered” or restitution “up
to” a certain amount). In contrast to the Lester plea agreement, here, the plea
agreement requires Beston “to pay restitution as may be ordered,” not “any
restitution.” Beston’s willingness to pay the ordered restitution was conditioned on
the district court ordering restitution for “all loss caused” by his conduct. Like the
defendants in Polukhin and Hansmeier, Beston challenges the lawfulness of the
restitution amount ordered, not his obligation to pay restitution, and Paragraph 20 of
the plea agreement does not bar our review of this challenge.
The second procedural point that we consider is whether Beston raises his
challenge to the restitution award for the first time on appeal due to a failure to timely
object below. The government asks this Court to not consider Beston’s argument
due to its alleged untimeliness, and if it does, to review for plain error.2 See United
States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016) (“Ordinarily, we will not consider
an argument raised for the first time on appeal.”); United States v. Dozier, 31 F.4th
624, 629 (8th Cir. 2022) (“When a party fails to timely and clearly state the grounds
for the objection, the argument is forfeited, and we review only for plain error.”).
We disagree, finding that Beston adequately preserved his objection to the higher
restitution amount, which encompasses his present argument regarding the district
court’s failure to follow the MVRA. Although Beston failed to submit a timely
written objection to the PSR, the district court exercised its discretion to consider his
oral objection at sentencing to the PSR’s contemplated restitution amount. See
United States v. Fogg, 409 F.3d 1022, 1027-28 (8th Cir. 2005) (finding that objection
to restitution order was not untimely where defendant made objection at sentencing
hearing and district court made ruling on merits). The district court acknowledged
2 As discussed in Part II, it is undisputed that Beston never objected to the
government’s breach of the plea agreement. The parties disagree, however, as to the
scope of Beston’s objection regarding the higher restitution amount set in the PSR.

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his objection, invited argument from both parties, and ultimately “overrule[d] the
objection to the restitution amount.” In his objection, Beston clearly informed the
district court as to how he believed the amount should be calculated, and his claim
now before us reflects the district court’s alleged failure to apply his proposed
calculation. See Fed. R. Crim. P. 51(b) (“A party may preserve a claim of error by
informing the court—when the court ruling or order is made or sought—of the action
the party wishes the court to take . . . .”).
Turning to the merits of Beston’s argument regarding the legality of the
district court’s restitution order, while the parties agree that the MVRA controls,
Beston contends that the district court failed to follow the process outlined in the
MVRA for calculating a restitution award. The MVRA directs the district court to
“determine who all qualifies as a victim, then calculate each victim’s actual,
provable losses based on a preponderance of the evidence, and finally determine
whether the victim should receive the restitution or whether a third party has already
provided the victim compensation and is therefore entitled to the restitution.”
Frazier, 651 F.3d at 905. “Restitution may only be awarded ‘for the loss caused by
the specific conduct that is the basis of the offense of the conviction.’” United States
v. DeRosier, 501 F.3d 888, 896 (8th Cir. 2007) (citation omitted). “[R]estitution
‘should be limited to compensation for [the victim’s] actual losses.’” Frazier, 651
F.3d at 904 (second alteration in original) (citation omitted). In determining the
victim’s actual loss, the MVRA instructs the district court “as to the point in time
when property should be valued”: “If the offense resulted in the loss or destruction
of property, the victim’s actual loss equals ‘the greater of . . . the value of the
property on the date of the damage, loss, or destruction; or . . . the value of the
property on the date of sentencing.’” Id. (alterations in original) (quoting 18 U.S.C.
§ 3663A(b)(1)(B)(i)). In contrast, “the ‘value’ of lost property under the MVRA
must be determined in the district court’s discretion depending on the circumstances
of each case.” Id.

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Upon careful review of the record, we agree with Beston that the district court
erred by failing to properly follow the procedure set forth in the MVRA, albeit under
the leading of the government. The MVRA denies courts discretion as to “the point
in time when property should be valued,” requiring that a district court review the
value of the property either on the date of damage or the date of sentencing. Id.
Because the relevant conduct serving as the basis for Beston’s offense was him
receiving the stolen vehicle and driving it into the lake, the district court should have
considered the value of the vehicle when he received the stolen vehicle and before
he drove it into the lake, not when the vehicle was originally stolen from the
dealership lot by someone else. The record, however, provides no indication that
the district court used these relevant dates when determining the vehicle’s value. At
sentencing, the government offered no proof of the vehicle’s value on the date of
damage, and it never cited the controlling statutory provision, § 3663A(b)(1), or
explained that the restitution amount should be based on the value as of the date of
damage or sentencing. Instead, the only evidence offered by the government was
from Gateway Chevrolet’s victim impact statement, which included the
manufacturer’s invoice price, Motors Insurance Corporation’s claim payment,
Gateway Chevrolet’s deductible, and the towing bill. This evidence alone is
insufficient to support the conclusion that Gateway Chevrolet’s actual loss caused
by Beston’s conduct equaled $30,845.50.
The government’s reliance on the insurance payment as proof of actual loss
does not excuse the district court’s failure to use the relevant dates in its restitution
determination. The MVRA provides “for direct, mandatory restitution to a private
insurer where a victim receives compensation for its losses from that insurer.”
United States v. Schmidt, 675 F.3d 1164, 1168 (8th Cir. 2012). “Although it could
be argued the amount of compensation a victim receives from a third party is
reflective of actual loss, the value of such information to the district court depends
on how the compensation amount was calculated.” Frazier, 651 F.3d at 908. “It
may be reasonable to assume for restitution purposes that a property insurer’s
payment of the victim’s claim fairly reflected the fair market value of the lost
property, but that assumption can be challenged by the victim . . . .” United States

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v. Fonesca, 790 F.3d 852, 855 (8th Cir. 2015). Here, Beston challenges the
government’s position that the insurance payment represents Gateway Chevrolet’s
actual loss, and the government offers no evidence that the insurance payment
reflects the value of the vehicle when Beston received it or before he drove it into
the lake. Ultimately, we conclude remand is appropriate for the MVRA’s actual loss
formula to be correctly applied in calculating the amount of restitution Beston must
pay.
IV.
For the foregoing reasons, we deny the government’s motion to dismiss the
appeal, vacate the district court’s restitution award, and remand with directions that
the case be reassigned to a different judge for further proceedings consistent with
this opinion. See Brown, 5 F.4th at 917. We remand the case for resentencing before
a different judge “in accordance with the procedure we follow in the event of a
government-occasioned breach.” United States v. Swisshelm, 848 F.3d 1157, 1161
(8th Cir. 2017). In doing so, “[w]e make clear that this reassignment in no way
questions the fairness of the sentencing judge.” Brown, 5 F.4th at 917.
LOKEN, Circuit Judge, concurring.
Though I join Part II of Judge Shepherd’s opinion, I believe that whether there
was a plain error breach of the plea agreement is a very close question for the
reasons stated in Judge Colloton’s dissent. However, as Part III of Judge Shepherd’s
opinion explains, there is far more to this issue than the prosecutor’s mistake in
failing to comply with the government’s promise to recommend a specific restitution
amount.
That mistake may or may not have been inadvertent. Far more inexcusable
was the government’s encouraging, supporting, and then totally failing to justify
claims for a far larger restitution penalty, claims the government then induced the
district court to award at sentencing by winking at its promise to advocate the agreed

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$16,950 amount. One can legitimately ask whether, if Beston had known of the
government shenanigans that lay ahead, he would have knowingly and voluntarily
agreed to the appeal waiver.
Regarding the victim restitution claims, we are told that Gateway’s insurer
paid Gateway the manufacturer’s list price on the vehicle at the time it was stolen.
Though the policy is not in evidence, that would be logical for property insurance
that covered an auto dealer’s inventory. But restitution must be limited to the loss
caused by Beston’s offense conduct. Therefore, it cannot exceed the value of the car
on the day Beston received it from the thief (or some other intermediary). Any
decline in the car’s list price value before that date, including depreciation or damage
on Gateway’s lot before it was stolen, is an amount the insurer contracted to pay
under its policy. It is not victim restitution loss. The government introduced no
evidence on this issue, and no evidence whether the car had salvage value after
Gateway paid a $1500 “recovery fee.” Without such evidence, the government was
not entitled to an award greater than the agreed $16,950 amount.
It is well-established that we will “refuse to enforce an otherwise valid waiver
if to do so would result in a miscarriage of justice.” United States v. Andis, 333 F.3d
886, 891 (8th Cir. 2003) (en banc). This is a narrow exception that “will not be
allowed to swallow the general rule that waivers of appellate rights are valid.” Id.
Enforcing the appeal waiver in this case allows the government to get away with an
inexcusably deficient restitution showing that results in imposing a $14,000
obligation on an impecunious defendant at the outset of his 21-month prison
sentence for the benefit of a car dealer and insurance company who made no effort
to corroborate their claims. In my view, this is unjust. Judge Colloton asserts
categorically that an erroneous restitution award is not a miscarriage of justice. Our
en banc opinion in Andis did not say that, and there are cases suggesting the
exception is not that narrow, such as Judge Posner’s opinion in United States v.
Litos, 847 F.3d 906, 910-11 (7th Cir. 2017). In any event, I conclude for all these
reasons that the appeal waiver may not be enforced to bar Beston’s claim. The
remand we are ordering is the fair and proper result.

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COLLOTON, Circuit Judge, dissenting.
Appellant Beston knowingly waived his right to appeal the district court’s
order of restitution. The court excuses the appeal waiver on the ground that the
government breached a plea agreement by failing to recommend a restitution amount
of $16,950 at sentencing. But defense counsel twice advised the court of the parties’
joint recommendation set forth in the agreement, and the court explained that it was
fully aware of the government’s recommendation. The defense never objected to
the government’s performance at the hearing. Under those circumstances, Beston
has forfeited any claim of breach, and he has failed to show a reasonable probability
that the government’s strict compliance with the plea agreement would have
changed the outcome of the proceeding. Therefore, this court should enforce the
appeal waiver and dismiss the appeal.
Beston’s plea agreement states that he waived his right to appeal, and that the
waiver “includes, but is not limited to, a waiver of all rights to appeal or collaterally
attack . . . any assessment, restitution, or forfeiture order.” R. Doc. 23, at 7. Beston
signed the agreement with the advice of counsel, and the district court confirmed his
understanding at a guilty plea hearing. The waiver was knowing and voluntary. See,
e.g., United States v. Seizys, 864 F.3d 930, 932 (8th Cir. 2017).
Whether or not the district court correctly calculated the restitution amount,
Beston waived his right to appeal the order. An allegedly erroneous restitution order
is not a “miscarriage of justice” that allows a defendant to avoid a negotiated waiver.
United States v. Schulte, 436 F.3d 849, 850-51 (8th Cir. 2006) (“If a defendant
sentenced erroneously to a lengthy term of imprisonment that was within the
statutory range but well beyond that authorized by the former mandatory guidelines
could not establish a miscarriage of justice, then we think it would be anomalous to
hold that a defendant challenging an order to pay a monetary sum could on that basis
avoid an appeal waiver to which he knowingly and voluntarily agreed.”). A waiver
that applies only when there is no error is no waiver at all. See United States v.
Andis, 333 F.3d 886, 894-96 (8th Cir. 2003) (en banc) (Arnold, J., concurring) (“To

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be sure, a plea agreement must be entered into knowingly and with a knowledge of
the consequences, but that only means, in the present context, that a defendant must
know that one of the consequences of his agreement is that he or she will have no
recourse to the court of appeals in the event of an error on the part of the district
court.”).
The court declines to enforce the appeal waiver here because the government
breached the plea agreement. To obtain appellate review despite an appeal waiver,
however, a defendant who forfeits a claim of breach must show an obvious breach
and a reasonable probability that the breach affected the outcome of the proceeding.
United States v. Lovelace, 565 F.3d 1080, 1086 (8th Cir. 2009). In this case, the
government agreed in writing to recommend a particular restitution amount at
sentencing, but then failed to make the oral recommendation that was required.
When a defendant stands by at the hearing and declines to object, he bears the burden
to show a reasonable probability that a less than enthusiastic oral reaffirmation by
the government would have made a difference.
Satisfying this burden “is difficult, as it should be.” Puckett v. United States,
556 U.S. 129, 135 (2009) (internal quotation omitted). The plain-error rule strikes
a “careful balance” between “judicial efficiency and the redress of injustice.” Id.
Relaxation of the burden disrupts that equilibrium and encourages sandbagging by
the defense. If this court does not scrupulously require the defense to show a
reasonable probability that the government’s failure to reaffirm an agreement
affected the outcome, then a defendant has little incentive to raise the government’s
noncompliance in the district court. Where the defense is able to cite a joint
recommendation of the parties in support of its position, and the district court is fully
aware of the government’s written recommendation, a defendant has little to gain by
objecting if he can instead remain silent and avoid an appeal waiver. Objecting
means that the defense is limited to one bite at the apple: the government almost
inevitably will reaffirm the agreement if the issue is raised, and the district court’s
ruling will be final with any appeal waived. Forfeiture and a relaxed plain-error
standard permits two bites: if the district court declines to accept the joint

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recommendation of the parties as urged by the defense, then the defendant can avoid
the appeal waiver and relitigate the merits of the issue on appeal.
In this case, the government breached the plea agreement by failing at
sentencing to recommend restitution in the amount of $16,950. The prosecutor
explained that the restitution amount in the agreement “was based upon the figure
that Gateway Nissan informed us was the value of the vehicle,” but “did not take
into account the insurance company or the towing bill.” R. Doc. 41, at 7. Her
mistake was in failing to state that the government nonetheless continued to
recommend the restitution amount to which it had agreed, and in volunteering a
disagreement with defense counsel’s assessment that $16,950 represented Beston’s
“contribution to the criminality.” Cf. United States v. Hand, 913 F.2d 854, 856-57
(10th Cir. 1990) (holding that government did not breach agreement where
prosecutor said: “Regarding role in the offense, we again recommend that this
defendant receive a reduction for having a minor role in the offense. That was my
assessment at that time. The court’s well aware of the facts in this case and can make
its own conclusion. We’ve agreed to recommend that, however.”).
Beston, however, did not object to the government’s position at sentencing,
and the district court was fully apprised of the joint recommendation concerning
restitution. The court said: “Mr. Beston did acknowledge in paragraph 20 of the
Plea Agreement that the Court would be required to order restitution and agreed to
pay restitution as ordered by the Court. The amount of restitution that was
contemplated per the Plea Agreement was $16,950.” R. Doc. 41, at 6. Defense
counsel reminded the court that the “amount of $16,000 is the agreed upon amount
of the parties in the Plea Agreement representing Count Two.” Id. at 10. Later in
the hearing, defense counsel reiterated: “[T]he parties have agreed on the amount.
It’s in the Plea Agreement. That is the position of the parties. I certainly understand
that the Court is not bound by that determination but that’s the parties’ figure that
they’ve agreed to.” Id. at 11. The court responded unequivocally: “I understand
that.” Id. Then, in announcing its decision, the court specifically acknowledged
“the recommendation of the United States per paragraph 18 recommending that he

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be ordered to pay restitution in the amount of 16,950,” but ultimately found that a
greater amount of restitution was appropriate. Id. at 12-13.
On this record, Beston has failed to meet his burden to show a reasonable
probability that the outcome would have been different if the prosecutor instead had
orally reaffirmed the written recommendation at the hearing. No matter what the
prosecutor said at the hearing, the court was not bound to adopt the restitution
amount stated in the plea agreement. The court properly considered all of the
relevant evidence, and made clear that its determination to reject the joint
recommendation was based on the evidence.
This court recently addressed a comparable situation where a district court
“made it crystal clear at sentencing” that it was aware of the government’s
recommendation in a plea agreement, but nonetheless decided that a different
sentence was appropriate. United States v. Helper, 7 F.4th 706, 711 (8th Cir. 2021).
Under those circumstances, the court said “there is simply no chance that, if [the
defendant] had timely objected and government counsel had reaffirmed the
government’s promise . . ., the outcome of the sentence proceeding would have been
different.” Id. The court attempts to distinguish Helper on the ground that the
government there was not required to reiterate its recommendation at the sentencing
hearing. That is no distinction: the court’s alternative prejudice analysis in Helper
assumed that if the defendant had timely objected, then the prosecutor would have
“reaffirmed the government’s promise in Paragraph G to recommend a five year
sentence.” Id. There was no showing of prejudice because there was no reasonable
probability that the prosecutor’s reaffirmation would have affected the outcome. Id.;
accord id. at 712-13 (Kelly, J., concurring in the judgment).
In concluding that Beston has shown prejudice, the court relies on the fact that
the district court did not say it would have reached the same outcome if the
government had reaffirmed the plea agreement at sentencing. The district court in
Helper did not make that statement either. Of course, the district court in this case
had no reason to make such a statement because Beston did not object to a breach at

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the hearing. The court effectively inverts the burden of proof as though the
government were required to establish that the forfeited error was harmless, see
United States v. Olano, 507 U.S. 725, 734 (1993), and even cites a harmless-error
decision, United States v. Smith, 584 F.3d 1127, 1129 (8th Cir. 2009), in support of
its conclusion.
Also problematic is the court’s reliance on the United States Attorney’s
gathering of information from Beston’s victims and provision of that information to
the probation office and the district court. The government had a duty to consult
with victims, 18 U.S.C. §§ 3664(d)(1), 3771(a)(5), and to provide all relevant
information to the court. United States v. Saxena, 229 F.3d 1, 5-6 & n.1 (1st Cir.
2000). If the government makes a faulty stipulation in a plea agreement based on
incomplete information, then the government has an obligation to adhere to the ill-
advised agreement, but it has no duty to withhold information that contradicts the
stipulation. Id. at 7-8; United States v. Moncivais, 492 F.3d 652, 664-65 (6th Cir.
2007); Hand, 913 F.2d at 856-57.
The court acknowledges that the government’s gathering and provision of
new information did not violate the plea agreement, but nonetheless relies on those
acts to support a conclusion of prejudice. A defendant who fails to object at
sentencing, however, must show that the breach itself caused the prejudice. The
district court would have received the information from Beston’s victims whether or
not the government reaffirmed the plea agreement at sentencing, so the influence of
that information on the court does not tend to show prejudice from the forfeited error.
Nor does the court’s criticism of the victim’s loss estimate of $24,345.50
further a conclusion of prejudice. The question is whether Beston has shown a
reasonable probability that the government’s failure to reaffirm the plea agreement
affected the outcome, not whether the district court erred on the merits of the
restitution determination. If the district court made an error in determining
restitution, the error was not likely due to lack of prosecutorial reaffirmation of the
plea agreement at sentencing.

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The prosecutor erred at sentencing by failing to reaffirm the government’s
recommendation on restitution and by volunteering a disagreement with defense
counsel’s position that the recommended amount appropriately reflected Beston’s
culpability. But the district court was well aware of the joint recommendation, and
the court simply rejected the recommendation after considering all of the relevant
facts. Beston forfeited his objection to the government’s breach, and he has failed
to show a reasonable probability that different performance by the prosecutor at
sentencing would have affected the outcome. Therefore, Beston’s waiver of his right
to appeal is enforceable, and I would dismiss the appeal.
______________________________

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