PUCKETT v. UNITED STATES

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129 OCTOBER TERM, 2008
Syllabus
PUCKETT v. UNITED STATES
certiorari to the united states court of appeals for
the fifth circuit
No. 07–9712. Argued January 14, 2009—Decided March 25, 2009
In exchange for petitioner Puckett’s guilty plea, the Government agreed to
request (1) a three-level reduction in his offense level under the Federal
Sentencing Guidelines on the ground that he had accepted responsibility
for his crimes; and (2) a sentence at the low end of the applicable Guide
lines range. The District Court accepted the plea, but before Puckett
was sentenced he assisted in another crime. As a result, the Govern
ment opposed any reduction in Puckett’s offense level, and the District
Court denied the three-level reduction. On appeal, Puckett raised for
the first time the argument that by backing away from its reduction
request, the Government had broken the plea agreement. The Fifth
Circuit found that Puckett had forfeited that claim by failing to raise it
below; applied Federal Rule of Criminal Procedure 52(b)’s plain-error
standard for unpreserved claims of error; and held that, although the
error had occurred and was obvious, Puckett had not satisfied the third
prong of plain-error analysis in that he failed to demonstrate that
his ultimate sentence was affected, especially since the District Judge
had found that acceptance-of-responsibility reductions for defendants
who continued to engage in criminal activity were so rare as “to be
unknown.”
Held: Rule 52(b)’s plain-error test applies to a forfeited claim, like Puck
ett’s, that the Government failed to meet its obligations under a plea
agreement, and applies in the usual fashion. Pp. 134–143.
(a) In federal criminal cases, Rule 51(b) instructs parties how to pre
serve claims of error: “by informing the court—when [a] ruling . . . is
made or sought—of the action the party wishes the court to take, or the
party’s objection to the court’s action and the grounds for that objec
tion.” A party’s failure to preserve a claim ordinarily prevents him
from raising it on appeal, but Rule 52(b) recognizes a limited exception
for plain errors. “Plain-error review” involves four prongs: (1) There
must be an error or defect that the appellant has not affirmatively
waived, United States v. Olano, 507 U. S. 725, 732–733; (2) it must be
clear or obvious, see id., at 734; (3) it must have affected the appellant’s
substantial rights, i. e., “affected the outcome of the district court pro
ceedings,” ibid.; and (4) if the three other prongs are satisfied, the court

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Syllabus
of appeals has the discretion to remedy the error if it “ ‘seriously af
fect[s] the fairness, integrity or public reputation of judicial proceed
ings,’ ” id., at 736. The question here is not whether plain-error review
applies when a defendant fails to preserve a claim that the Government
defaulted on its plea-agreement obligations, but what conceivable reason
exists for disregarding its evident application. The breach undoubtedly
violates the defendant’s rights, but the defendant has the opportunity
to seek vindication of those rights in district court; if he fails to do so,
Rule 52(b) as clearly sets forth the consequences for that forfeiture as
it does for all others. Pp. 134–136.
(b) Neither Puckett’s doctrinal arguments nor the practical considera
tions that he raises counsel against applying plain-error review in the
present context. The Government’s breach of the plea agreement does
not retroactively cause the defendant’s guilty plea to have been unknow
ing or involuntary. This Court’s decision in Santobello v. New York,
404 U. S. 257, does not govern, since the question whether an error can
be found harmless is different from the question whether it can be sub
jected to plain-error review. Puckett is wrong in contending that no
purpose is served by applying plain-error review: There is much to be
gained by inducing the objection to be made at the trial court level,
where (among other things) the error can often be remedied. And not
all plea breaches will satisfy the doctrine’s four prongs. Pp. 136–143.
505 F. 3d 377, affirmed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined.
Souter, J., filed a dissenting opinion, in which Stevens, J., joined, post,
p. 143.
Lars Robert Isaacson argued the cause for petitioner.
With him on the briefs were Jonathan D. Hacker and Geof
frey M. Wyatt.
Lisa H. Schertler argued the cause for the United States.
With her on the brief were former Solicitor General Garre,
Acting Assistant Attorney General Friedrich, Deputy Solic
itor General Dreeben, and Kathleen A. Felton.*
*Kevin P. Martin, Dahlia S. Fetouh, Jodi B. Kalagher, and Barbara
Bergman filed a brief for the National Association of Criminal Defense
Lawyers as amicus curiae.

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Opinion of the Court
Justice Scalia delivered the opinion of the Court.
The question presented by this case is whether a forfeited
claim that the Government has violated the terms of a plea
agreement is subject to the plain-error standard of review
set forth in Rule 52(b) of the Federal Rules of Criminal
Procedure.
I
In July 2002, James Puckett was indicted by a grand jury
in the Northern District of Texas on one count of armed bank
robbery, 18 U. S. C. § 2113(a), (d), and one count of using a
firearm during and in relation to a crime of violence,
§ 924(c)(1). He negotiated a plea agreement with the Gov
ernment, which was filed with the District Court on Septem
ber 3, 2003. As part of that deal, Puckett agreed to plead
guilty to both counts, waive his trial rights, and cooperate
with the Government by being truthful regarding his partici
pation in criminal activities. App. 51a–53a. In exchange,
the Government agreed to the following two terms:
“8. The government agrees that Puckett has demon
strated acceptance of responsibility and thereby quali
fies for a three-level reduction in his offense level.
“9. The government also agrees to request that Puck
ett’s sentence be placed at the lowest end of the guide
line level deemed applicable by the Court.” Id., at 54a.
To satisfy the first of these obligations, the Government
filed a motion in the District Court pursuant to § 3E1.1 of the
United States Sentencing Commission’s Guidelines Manual
(Nov. 2003) (USSG). That provision directs sentencing
courts to decrease a defendant’s offense level under the
Guidelines by two levels if he “clearly demonstrates accept
ance of responsibility for his offense,” and by a third level
“upon motion of the government stating that the defendant
has assisted authorities in the investigation or prosecution
of his own misconduct by timely notifying authorities of his
intention to enter a plea of guilty.” Two weeks later, the

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District Court held a plea colloquy, see Fed. Rule Crim. Proc.
11(b), and accepted Puckett’s plea.
Because of delays due to health problems experienced by
Puckett, sentencing did not take place for almost three years.
In the interim, Puckett assisted another man in a scheme
to defraud the Postal Service, and confessed that assistance
(under questioning) to a probation officer. The officer pre
pared an addendum to Puckett’s presentence report recom
mending that he receive no § 3E1.1 reduction for acceptance
of responsibility, on the theory that true acceptance of re
sponsibility requires termination of criminal conduct. See
USSG § 3E1.1, comment., n. 1(b).
When sentencing finally did take place on May 4, 2006,
Puckett’s counsel objected to the addendum, pointing out
that the Government had filed a motion requesting that the
full three-level reduction in offense level be granted. The
District Judge turned to the prosecutor, who responded that
the motion was filed “a long time ago,” App. 79a, before
Puckett had engaged in the additional criminal behavior.
She made clear that the Government opposed any reduction
in Puckett’s offense level for acceptance of responsibility.
The probation officer then added his view that under the
Guidelines, a reduction would be improper.
After hearing these submissions, the District Judge con
cluded that even assuming he had the discretion to grant
the reduction, he would not do so. “[I]t’s so rare [as] to be
unknown around here where one has committed a crime sub
sequent to the crime for which they appear before the court
and for them even then to get the three points.” Id., at
80a–81a. He agreed, however, to follow the recommenda
tion that the Government made, pursuant to its commitment
in the plea agreement, that Puckett be sentenced at the low
end of the applicable Guidelines range, which turned out to
be 262 months in prison for the armed bank robbery and a
mandatory minimum consecutive term of 84 months for the
firearm crime. Had the District Court granted the three

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level reduction for acceptance of responsibility, the bottom
of the Guidelines range would have been 188 months for the
robbery; the firearm sentence would not have been affected.
Importantly, at no time during the exchange did Puckett’s
counsel object that the Government was violating its obliga
tions under the plea agreement by backing away from its
request for the reduction. He never cited the relevant pro
vision of the plea agreement. And he did not move to with
draw Puckett’s plea on grounds that the Government had
broken its sentencing promises.
On appeal to the United States Court of Appeals for the
Fifth Circuit, Puckett did argue, inter alia, that the Govern
ment violated the plea agreement at sentencing. The Gov
ernment conceded that by objecting to the reduction for ac
ceptance of responsibility, it had violated the obligation set
forth in paragraph 8 of the agreement, but maintained that
Puckett had forfeited this claim by failing to raise it in the
District Court. The Court of Appeals agreed, and applied
the plain-error standard that Rule 52(b) makes applicable to
unpreserved claims of error. 505 F. 3d 377, 384 (2007). It
held that although error had occurred and was obvious,
Puckett had not satisfied the third prong of the plain-error
analysis by demonstrating that the error affected his sub
stantial rights, i. e., caused him prejudice. Id., at 386. Es
pecially in light of the District Judge’s statement that grant
ing a reduction when the defendant had continued to engage
in criminal conduct was “so rare [as] to be unknown,” Puck
ett could not show that the Government’s breach had
affected his ultimate sentence. The Court of Appeals ac
cordingly affirmed the conviction and sentence. Id., at 388.
We granted certiorari, 554 U. S. 945 (2008), to consider a
question that has divided the Federal Courts of Appeals:
whether Rule 52(b)’s plain-error test applies to a forfeited
claim, like Puckett’s, that the Government failed to meet its
obligations under a plea agreement. See In re Sealed Case,
356 F. 3d 313, 315–318 (CADC 2004) (discussing conflict

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among the Circuits). Concluding that Rule 52(b) does apply
and in the usual fashion, we now affirm.
II
If a litigant believes that an error has occurred (to his det
riment) during a federal judicial proceeding, he must object
in order to preserve the issue. If he fails to do so in a timely
manner, his claim for relief from the error is forfeited. “No
procedural principle is more familiar to this Court than that
a . . . right may be forfeited in criminal as well as civil cases
by the failure to make timely assertion of the right before
a tribunal having jurisdiction to determine it.” Yakus v.
United States, 321 U. S. 414, 444 (1944).
If an error is not properly preserved, appellate-court au
thority to remedy the error (by reversing the judgment, for
example, or ordering a new trial) is strictly circumscribed.
There is good reason for this; “anyone familiar with the work
of courts understands that errors are a constant in the trial
process, that most do not much matter, and that a reflexive
inclination by appellate courts to reverse because of unpre
served error would be fatal.” United States v. Padilla, 415
F. 3d 211, 224 (CA1 2005) (Boudin, C. J., concurring).
This limitation on appellate-court authority serves to in
duce the timely raising of claims and objections, which gives
the district court the opportunity to consider and resolve
them. That court is ordinarily in the best position to deter
mine the relevant facts and adjudicate the dispute. In the
case of an actual or invited procedural error, the district
court can often correct or avoid the mistake so that it cannot
possibly affect the ultimate outcome. And of course the
contemporaneous-objection rule prevents a litigant from
“ ‘sandbagging’ ” the court—remaining silent about his ob
jection and belatedly raising the error only if the case does
not conclude in his favor. Cf. Wainwright v. Sykes, 433 U. S.
72, 89 (1977); see also United States v. Vonn, 535 U. S. 55,
72 (2002).

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In federal criminal cases, Rule 51(b) tells parties how to
preserve claims 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, or the party’s objection to
the court’s action and the grounds for that objection.” Fail
ure to abide by this contemporaneous-objection rule ordi
narily precludes the raising on appeal of the unpreserved
claim of trial error. See United States v. Young, 470 U. S.
1, 15, and n. 12 (1985). Rule 52(b), however, recognizes a
limited exception to that preclusion. The Rule provides, in
full: “A plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.”
We explained in United States v. Olano, 507 U. S. 725
(1993), that Rule 52(b) review—so-called “plain-error re
view”—involves four steps, or prongs. First, there must be
an error or defect—some sort of “[d]eviation from a legal
rule”—that has not been intentionally relinquished or aban
doned, i. e., affirmatively waived, by the appellant. Id., at
732–733. Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. See id., at 734.
Third, the error must have affected the appellant’s substan
tial rights, which in the ordinary case means he must dem
onstrate that it “affected the outcome of the district court
proceedings.” Ibid. Fourth and finally, if the above three
prongs are satisfied, the court of appeals has the discretion
to remedy the error—discretion which ought to be exercised
only if the error “ ‘seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.’ ” Id., at 736
(quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)).
Meeting all four prongs is difficult, “as it should be.” United
States v. Dominguez Benitez, 542 U. S. 74, 83, n. 9 (2004).
We have repeatedly cautioned that “[a]ny unwarranted ex
tension” of the authority granted by Rule 52(b) would dis
turb the careful balance it strikes between judicial efficiency
and the redress of injustice, see Young, supra, at 15; and that

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the creation of an unjustified exception to the Rule would be
“[e]ven less appropriate,” Johnson v. United States, 520 U. S.
461, 466 (1997). The real question in this case is not whether
plain-error review applies when a defendant fails to preserve
a claim that the Government defaulted on its plea-agreement
obligations, but rather what conceivable reason exists for
disregarding its evident application. Such a breach is
undoubtedly a violation of the defendant’s rights, see
Santobello v. New York, 404 U. S. 257, 262 (1971), but the
defendant has the opportunity to seek vindication of those
rights in district court; if he fails to do so, Rule 52(b) as
clearly sets forth the consequences for that forfeiture as it
does for all others.
III
Puckett puts forward several possible reasons why plain
error review should not apply in the present context. We
understand him to be making effectively four distinct argu
ments: two doctrinal, two practical. We consider each set
in turn.
A
Puckett’s primary precedent-based argument proceeds as
follows: When the Government breaks a promise that was
made to a defendant in the course of securing a guilty plea,
the knowing and voluntary character of that plea retroac
tively vanishes, because (as it turns out) the defendant was
not aware of its true consequences. Since guilty pleas must
be knowing and voluntary to be valid, McCarthy v. United
States, 394 U. S. 459, 466 (1969), the guilty plea is thus void,
along with the defendant’s corresponding waiver of his right
to trial. And because, under this Court’s precedents, a
waiver of the right to trial must be made by the defendant
personally, see Taylor v. Illinois, 484 U. S. 400, 417–418, and
n. 24 (1988), no action by counsel alone could resurrect the
voided waiver. Therefore, Puckett concludes, counsel’s fail
ure timely to object to a Government breach can have no

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effect on the analysis, and the court of appeals must always
correct the error.
This elaborate analysis suffers from at least two defects.
First, there is nothing to support the proposition that the
Government’s breach of a plea agreement retroactively
causes the defendant’s agreement to have been unknowing
or involuntary. Any more than there is anything to support
the proposition that a mere breach of contract retroactively
causes the other party’s promise to have been coerced or
induced by fraud. Although the analogy may not hold in
all respects, plea bargains are essentially contracts. See
Mabry v. Johnson, 467 U. S. 504, 508 (1984). When the con
sideration for a contract fails—that is, when one of the ex
changed promises is not kept—we do not say that the volun
tary bilateral consent to the contract never existed, so that
it is automatically and utterly void; we say that the contract
was broken. See 23 R. Lord, Williston on Contracts § 63.1
(4th ed. 2002) (hereinafter Williston). The party injured by
the breach will generally be entitled to some remedy, which
might include the right to rescind the contract entirely, see
26 id., § 68.1 (4th ed. 2003); but that is not the same thing as
saying the contract was never validly concluded.
So too here. When a defendant agrees to a plea bargain,
the Government takes on certain obligations. If those obli
gations are not met, the defendant is entitled to seek a rem
edy, which might in some cases be rescission of the agree
ment, allowing him to take back the consideration he has
furnished, i. e., to withdraw his plea. But rescission is not
the only possible remedy; in Santobello we allowed for a re
sentencing at which the Government would fully comply
with the agreement—in effect, specific performance of the
contract. 404 U. S., at 263. In any case, it is entirely clear
that a breach does not cause the guilty plea, when entered,
to have been unknowing or involuntary. It is precisely be
cause the plea was knowing and voluntary (and hence valid)

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that the Government is obligated to uphold its side of the
bargain.1
Moreover, and perhaps more fundamentally, Puckett’s ar
gument confuses the concepts of waiver and forfeiture. No
body contends that Puckett’s counsel has waived—that is,
intentionally relinquished or abandoned, Olano, 507 U. S., at
733—Puckett’s right to seek relief from the Government’s
breach. (If he had, there would be no error at all and plain
error analysis would add nothing.) The objection is rather
that Puckett forfeited the claim of error through his counsel’s
failure to raise the argument in the District Court. This
Court’s precedents requiring that certain waivers be per
sonal, knowing, and voluntary are thus simply irrelevant.
Those holdings determine whether error occurred, but say
nothing about the proper standard of review when the claim
of error is not preserved. The question presented by this
case assumes error; only the standard of review is in dispute.
Puckett’s second doctrinal attack rests on our decision in
Santobello. In that case, the State had promised in a plea
1 Puckett points out that in Brady v. United States, 397 U. S. 742 (1970),
we quoted approvingly the Fifth Circuit’s statement that guilty pleas must
stand unless induced by “misrepresentation (including unfulfilled or unful
fillable promises),” id., at 755 (quoting Shelton v. United States, 246 F. 2d
571, 572, n. 2 (CA5 1957) (en banc); internal quotation marks omitted).
But it is hornbook law that misrepresentation requires an intent at the
time of contracting not to perform. 26 Williston § 69.11. It is more dif
ficult to explain the other precedent relied upon by Puckett—our sugges
tion in Mabry v. Johnson, 467 U. S. 504, 509 (1984), that “when the prose
cution breaches its promise with respect to an executed plea agreement,
the defendant pleads guilty on a false premise, and hence his conviction
cannot stand.” That statement, like the one in Brady, was dictum. Its
conclusion that the conviction cannot stand is only sometimes true (if that
is the remedy the court prescribes for the breach). And even when the
conviction is overturned, the reason is not that the guilty plea was un
knowing or involuntary. We disavow any aspect of the Mabry dictum
that contradicts our holding today.

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deal that it would make no sentencing recommendation, but
the prosecutor (apparently unaware of that commitment)
asked the state trial court to impose the maximum penalty
of one year. Defense counsel immediately objected. 404
U. S., at 259. The trial judge proceeded anyway to impose
the 1-year sentence, reassuring Santobello that the prosecu
tor’s recommendation did not affect his decision. Id., at
259–260. This Court vacated the conviction and remanded
the case because “the interests of justice” would thus be best
served. Id., at 262.
Puckett maintains that if the “interests of justice” re
quired a remand in Santobello even though the breach there
was likely harmless, those same interests call for a remand
whenever the Government reneges on a plea bargain, forfeit
ure or not. We do not agree. Whether an error can be
found harmless is simply a different question from whether
it can be subjected to plain-error review. Santobello (given
that the error in that case was preserved) necessarily ad
dressed only the former.
B
Doctrine and precedent aside, Puckett argues that practi
cal considerations counsel against subjecting plea-breach
claims to the rule of plain-error review. Specifically, he con
tends that no purpose would be served by applying the rule;
and that plea breaches will always satisfy its four prongs,
making its application superfluous. Accepting, arguendo
(and dubitante), that policy concerns can ever authorize a
departure from the Federal Rules, both arguments are
wrong.
Puckett suggests that once the prosecution has broken its
agreement, e. g., by requesting a higher sentence than agreed
upon, it is too late to “unring” the bell even if an objection
is made: The district judge has already heard the request,
and under Santobello it does not matter if he was influenced
by it. So why demand the futile objection?

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For one thing, requiring the objection means the defend
ant cannot “game” the system, “wait[ing] to see if the sen
tence later str[ikes] him as satisfactory,” Vonn, 535 U. S., at
73, and then seeking a second bite at the apple by raising
the claim. For another, the breach itself will not always be
conceded.2 In such a case, the district court if apprised of
the claim will be in a position to adjudicate the matter in
the first instance, creating a factual record and facilitating
appellate review. Thirdly, some breaches may be curable
upon timely objection—for example, where the prosecution
simply forgot its commitment and is willing to adhere to the
agreement. And finally, if the breach is established but can
not be cured, the district court can grant an immediate rem
edy (e. g., withdrawal of the plea or resentencing before a
different judge) and thus avoid the delay and expense of a
full appeal.
Puckett also contends that plain-error review “does no
substantive work” in the context of the Government’s breach
of a plea agreement. Brief for Petitioner 22. He claims
that the third prong, the prejudice prong, has no application,
since plea-breach claims fall within “a special category of for
feited errors that can be corrected regardless of their effect
on the outcome.” Olano, 507 U. S., at 735.
This Court has several times declined to resolve whether
“structural” errors—those that affect “the framework within
which the trial proceeds,” Arizona v. Fulminante, 499 U. S.
279, 310 (1991)—automatically satisfy the third prong of the
plain-error test. Olano, supra, at 735; Johnson, 520 U. S.,
at 469; United States v. Cotton, 535 U. S. 625, 632 (2002).
Once again we need not answer that question, because
2 Indeed, in this case the Government might well have argued that it
was excused from its obligation to assert “demonstrated acceptance of
responsibility” because Puckett’s ongoing criminal conduct hindered per
formance. See 13 Williston § 39.3 (4th ed. 2000). That argument might
have convinced us had it been pressed, but the Government conceded the
breach, and we analyze the case as it comes to us.

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breach of a plea deal is not a “structural” error as we have
used that term. We have never described it as such, see
Johnson, supra, at 468–469, and it shares no common fea
tures with errors we have held structural. A plea breach
does not “necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or inno
cence,” Neder v. United States, 527 U. S. 1, 9 (1999) (emphasis
deleted); it does not “defy analysis by ‘harmless-error’ stand
ards” by affecting the entire adjudicatory framework, Ful
minante, supra, at 309; and the “difficulty of assessing the
effect of the error,” United States v. Gonzalez-Lopez, 548
U. S. 140, 149, n. 4 (2006), is no greater with respect to plea
breaches at sentencing than with respect to other procedural
errors at sentencing, which are routinely subject to harm
lessness review, see, e. g., United States v. Teague, 469 F. 3d
205, 209–210 (CA1 2006).
Santobello did hold that automatic reversal is warranted
when objection to the Government’s breach of a plea agree
ment has been preserved,3 but that holding rested not upon
the premise that plea-breach errors are (like “structural” er
rors) somehow not susceptible, or not amenable, to review
for harmlessness, but rather upon a policy interest in estab
lishing the trust between defendants and prosecutors that
is necessary to sustain plea bargaining—an “essential” and
“highly desirable” part of the criminal process, 404 U. S., at
261–262. But the rule of contemporaneous objection is
equally essential and desirable, and when the two collide we
see no need to relieve the defendant of his usual burden of
showing prejudice. See Olano, supra, at 734.
The defendant whose plea agreement has been broken by
the Government will not always be able to show prejudice,
either because he obtained the benefits contemplated by the
deal anyway (e. g., the sentence that the prosecutor promised
3 We need not confront today the question whether Santobello’s
automatic-reversal rule has survived our recent elaboration of harmless
error principles in such cases as Fulminante and Neder.

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to request) or because he likely would not have obtained
those benefits in any event (as is seemingly the case here).4
On the dissent’s view, a defendant in Puckett’s position has
always suffered an impairment of his “substantial rights”
under Olano’s third prong, because he has been convicted
“in the absence of trial or compliance with the terms of the
plea agreement dispensing with the Government’s obligation
to prove its case.” Post, at 143–144 (opinion of Souter, J.).
But that is simply an ipse dixit recasting the conceded
error—breach of the plea agreement—as the effect on sub
stantial rights. Any trial error can be said to impair sub
stantial rights if the harm is defined as “being convicted
at a trial tainted with [fill-in-the-blank] error.” Nor does
the fact that there is a “protected liberty interest” at stake
render this case different, see post, at 145. That interest is
always at stake in criminal cases. Eliminating the third
plain-error prong through semantics makes a nullity of
Olano’s instruction that a defendant normally “must make a
specific showing of prejudice” in order to obtain relief, 507
U. S., at 735.
Puckett contends that the fourth prong of plain-error re
view likewise has no application because every breach of a
plea agreement will constitute a miscarriage of justice.
That is not so. The fourth prong is meant to be applied on
a case-specific and fact-intensive basis. We have empha
sized that a “per se approach to plain-error review is flawed.”
Young, 470 U. S., at 17, n. 14. It is true enough that when
the Government reneges on a plea deal, the integrity of the
4 Because, as we have explained, the breach consists of a wrongful denial
of the rights obtained by the defendant through the plea agreement and
does not automatically invalidate the plea, we agree with the Government
that the question with regard to prejudice is not whether Puckett would
have entered the plea had he known about the future violation. Cf.
United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the
rights acquired by the defendant relate to sentencing, the “ ‘outcome’ ” he
must show to have been affected is his sentence.

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system may be called into question, but there may well be
countervailing factors in particular cases. Puckett is again
a good example: Given that he obviously did not cease his
life of crime, receipt of a sentencing reduction for acceptance
of responsibility would have been so ludicrous as itself to
compromise the public reputation of judicial proceedings.
Of course the second prong of plain-error review also will
often have some “bite” in plea-agreement cases. Not all
breaches will be clear or obvious. Plea agreements are not
always models of draftsmanship, so the scope of the Gov
ernment’s commitments will on occasion be open to doubt.
Moreover, the Government will often have a colorable (albeit
ultimately inadequate) excuse for its nonperformance. See
n. 2, supra.
* * *
Application of plain-error review in the present context
is consistent with our cases, serves worthy purposes, has
meaningful effects, and is in any event compelled by the
Federal Rules. While we recognize that the Government’s
breach of a plea agreement is a serious matter, “the serious
ness of the error claimed does not remove consideration of it
from the ambit of the Federal Rules of Criminal Procedure.”
Johnson, 520 U. S., at 466.
The judgment of the Court of Appeals is
Affirmed.
Justice Souter, with whom Justice Stevens joins,
dissenting.
Petitioner’s situation does not excite sympathy, but the
Court’s holding will stand for a rule in circumstances less
peculiar than those here. I disagree with my colleagues
with respect to the interest at stake for a criminal defendant
in a case like this, and I respectfully dissent.
This case turns on whether plain-error review applies to
an unpreserved claim that the Government breached its plea
agreement and on identifying the relevant effect, or substan

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144 PUCKETT v. UNITED STATES
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tial rights implicated, under the third prong of United States
v. Olano, 507 U. S. 725, 734 (1993). I agree with the major
ity that plain error is the proper test, but depart from the
Court’s holding that the effect in question is length of incar
ceration for the offense charged (as to which the error here
probably made no ultimate difference). I would hold that
the relevant effect is conviction in the absence of trial or
compliance with the terms of the plea agreement dispensing
with the Government’s obligation to prove its case.
The first two conditions for recognizing plain error, that
there be error and that it be clear, see id., at 732–734, are
without doubt satisfied here. Before sentencing, a colloquy
in accordance with Federal Rule of Criminal Procedure 11
laid the ground for satisfying the requirement that the error
be obvious, by making a public record of the terms of the
plea agreement between Puckett and the Government.
Both the written agreement and the Government’s represen
tation to the District Court included the Government’s state
ment that Puckett qualified for a three-level reduction in his
offense level under the Sentencing Guidelines, because of his
acceptance of responsibility for his offense. See App. 54a
(“The government agrees that Puckett has demonstrated ac
ceptance of responsibility and thereby qualifies for a three
level reduction in his offense level”); id., at 68a (“The govern
ment agrees that Mr. Puckett has demonstrated acceptance
of responsibility and thereby would qualify for a three level
reduction in his offense level”).
Puckett does indeed appear to have satisfied the conditions
on which the Government’s commitment was premised: he
accepted responsibility for committing “his offense[s]” and
“assisted authorities in the investigation or prosecution of
his own misconduct by timely notifying authorities of his in
tention to enter a plea of guilty.” United States Sentencing
Commission, Guidelines Manual § 3E1.1 (Nov. 2003). His
subsequent criminality (during the unusual 3-year break be
tween his guilty plea and sentencing) was not a failure on

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145 Cite as: 556 U. S. 129 (2009)
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his part to accept responsibility for his prior crimes (the ben
efit of which the Government had already received by the
time Puckett pleaded guilty). In any case, the Government
could have insisted on a provision in the plea agreement
allowing it to back out of its commitment if Puckett engaged
in additional criminal conduct prior to sentencing, and did
not do so. It should therefore be bound by the terms of the
agreement it made, whether or not Puckett was in fact enti
tled to the reduction. In administering the criminal law no
less than the civil, parties are routinely bound by agreements
they wish they had not made. This is why the Government
has no choice but to admit that it breached the plea agree
ment when, at sentencing, it objected to the three-level re
duction. Despite its contention that the plain-error doctrine
does not save Puckett from his failure to object at the sen
tencing hearing, the Government does not deny that a deal
is a deal and it does not deny that it broke its word.
The plain-error doctrine will not, however, avail Puckett
anything unless the remaining conditions set out in Olano
are satisfied, the third requiring a showing that sentencing
Puckett on a plea given in return for an unfulfilled promise
by the Government violated his substantial rights. See 507
U. S., at 734. The majority understands the effect in ques
tion to be length of incarceration. See ante, at 142, n. 4
(“When the rights acquired by the defendant relate to sen
tencing, the ‘ “outcome” ’ he must show to have been affected
is his sentence”). Since Puckett can hardly show that a
court apprised of his subsequent criminality would have
given him the three-level reduction even in the absence of
the Government’s breach, in the majority’s view he cannot
satisfy the “substantial rights” criterion and so fails to qual
ify for correction of the admitted clear error.
I, on the contrary, would identify the effect on substantial
rights as the criminal conviction itself, regardless of length
of incarceration. My reason is simply that under the Consti
tution the protected liberty interest in freedom from crimi

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146 PUCKETT v. UNITED STATES
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nal taint, subject to the Fifth Amendment’s due process
guarantee of fundamental fairness, is properly understood to
require a trial or plea agreement honored by the Govern
ment before the stigma of a conviction can be imposed.
That protection does not vanish if a convicted defendant
turns out to get a light sentence. It is the trial leading to
possible conviction, not the sentencing hearing alone, that is
the focus of this guarantee, and it is the possibility of crimi
nal conviction itself, without more, that calls for due process
protection. In a legal system constituted this way, it is hard
to imagine anything less fair than branding someone a crimi
nal not because he was tried and convicted, but because he
entered a plea of guilty induced by an agreement the Gov
ernment refuses to honor.
Agreements must therefore be kept by the Government as
well as by the individual, and if the plain-error doctrine can
ever rescue a defendant from the consequence of forfeiting
rights by inattention, it should be used when the Govern
ment has induced an admission of criminality by making an
agreement that it deliberately breaks after the defendant has
satisfied his end of the bargain. Redressing such fundamen
tally unfair behavior by the Government, whether by vacat
ing the plea or enforcing the plea agreement, see Santobello
v. New York, 404 U. S. 257, 263 (1971), is worth the undoubted
risk of allowing a defendant to game the system and the
additional administrative burdens, see ante, at 134, 140. If
the Judiciary is worried about gamesmanship and extra pro
ceedings, all it needs to do is to minimize their likelihood by
making it plain that it will require the Government to keep
its word or seek rescission of the plea agreement if it has
cause to do so. Thus, I would find that a defendant’s sub
stantial rights have been violated whenever the Government
breaches a plea agreement, unless the defendant got just
what he bargained for anyway from the sentencing court.
What I have said about the third Olano criterion deter
mines my treatment of the fourth, addressing whether leav

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ing the error uncorrected “may be said . . . ‘seriously [to]
affect the fairness, integrity or public reputation of judicial
proceedings.’ ” 507 U. S., at 744 (Stevens, J., dissenting)
(quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)).
If I am right that in this case the protected interest is in the
guarantee that no one is liable to spend a day behind bars as
a convict without a trial or his own agreement, then the fair
ness and integrity of the Judicial Branch suffer when a court
imprisons a defendant after he pleaded guilty in reliance on
a plea agreement, only to have the Government repudiate
the obligation it agreed upon. That is precisely what hap
pened here, yet the Judiciary denies relief under an appellate
procedure for correcting patent error. Judicial repute does
not escape without damage in the eyes of anyone who sees
beyond the oddity of this case.
Puckett is entitled to relief because he and every other
defendant who may make an agreement with the Govern
ment are entitled to take the Government at its word.
Puckett insists that the Government keep its word, and if
we are going to have a plain-error doctrine at all, the Judi
ciary has no excuse for closing this generally available ave
nue of redress to Puckett or to any other criminal defendant
standing in his shoes.