United States of America v. Luis Davis

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-1327
___________
UNITED STATES OF AMERICA
v.
LUIS DAVIS,
Appellant
____________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 1-17-cr-00038-001)
District Judge: Honorable Wilma A. Lewis
____________
Argued on December 13, 2023
Before: HARDIMAN, KRAUSE, and RENDELL, Circuit
Judges.
(Filed: June 27, 2024)
Matthew A. Campbell [Argued]
Office of Federal Public Defender
District of the Virgin Islands

-- 1 of 21 --

2
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802
Counsel for Appellant
Daniel H. Huston
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, VI 00820
Delia L. Smith
Adam Sleeper [Argued]
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Luis Davis appeals the District Court’s judgment
sentencing him to 102 months’ imprisonment. He claims the
Government breached its promise in a plea agreement to
recommend a sentence at the “low end” of his Sentencing
Guidelines range (87 to 108 months). We agree that the
Government breached the agreement when it emphasized the
heinous nature of Davis’s crimes and the harm suffered by the

-- 2 of 21 --

3
victims. In doing so, the Government effectively advocated for
a sentence higher than the one it promised to recommend. So
we will vacate and remand for resentencing.
I
Stephen O’Dea and Kathryn Duncan were asleep at
home on the island of Saint Croix in September 2017 when
they awoke to three intruders: Luis Davis, Joel Rivera, and
Chriss Cepeda. The masked men were no strangers to the
property—at least one of them had helped O’Dea prepare the
estate for a hurricane several weeks prior. The trio punched
O’Dea in the face and ripped the bedsheets off Duncan. They
also slapped Duncan, threatened to rape her, and put a gun to
her head—telling her it “would be blown off” if she didn’t tell
them where to find the couple’s money. App. 100. After O’Dea
revealed that his wallet was at a nearby farm, the culprits forced
the couple into O’Dea’s truck at gunpoint. While continuing to
punch O’Dea and menace Duncan, they drove to the farm
where they seized O’Dea’s wallet and cash. They then forced
the victims to their knees and stripped them naked before
driving off in O’Dea’s jeep. Stranded, the couple ran to a
neighbor’s house for help.
Police tracked the perpetrators to a gas station, where
they recovered Duncan’s stolen iPad along with two loaded
handguns and ammunition stashed in a backpack. A grand jury
later indicted Davis on twelve counts, charging him with
violations of Virgin Islands and federal law.
Davis signed a written agreement pleading guilty to
three counts: brandishing a firearm during a violent crime in
violation of 18 U.S.C. §§ 2(a) and 924(c)(1)(A)(ii), carjacking
in violation of 18 U.S.C. §§ 2(a) and 2119(1), and being a felon

-- 3 of 21 --

4
in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). In exchange, the Government
agreed to dismiss the remaining counts and to recommend the
seven-year statutory minimum sentence for brandishing the
firearm. Central to this appeal, the Government also agreed to
recommend “a sentence at the low end of the applicable
guideline range,” as “determined by the Court,” for the
grouped carjacking and felon-in-possession counts. App. 83.
The parties calculated that range as 87 to 108 months’
imprisonment.
Consistent with the plea agreement, the parties’
sentencing memoranda recommended a sentence at the low
end of Davis’s Guidelines range, with the Government
specifically recommending 87 months and Davis offering
mitigating evidence to support the recommendation. At
sentencing, the Court determined the applicable Guidelines
sentence for brandishing a firearm was the statutory minimum
of 84 months’ imprisonment and the Guidelines range for the
carjacking and felon-in-possession counts was 87 to 108
months’ imprisonment, to be served consecutive to the
brandishing offense.
Davis’s counsel presented mitigating evidence
regarding his client’s abusive childhood, intellectual
disabilities, drug addiction, the negative influence of his
adopted brother, and the lack of helpful interventions
throughout his life. Counsel also presented a
neuropsychologist’s report claiming that childhood head
trauma had impacted Davis’s cognitive development and
executive function.
For its part, the Government recounted in detail Davis’s
crime and his cruelty toward O’Dea and Duncan. The

-- 4 of 21 --

5
prosecutor described how the perpetrators broke into the
victims’ bedroom in the middle of the night, menaced them at
gunpoint, and stranded them naked at the shoreline—all while
physically assaulting the couple and threatening to kill them.
He also emphasized Davis’s unwavering commitment to his
crime: “[E]ven with [Davis’s] impulse control limitations, he
had ample time, ample opportunity, ample segments where
[h]e could have tapped out,” but he chose not to do so. App.
145. The Government also discussed the ongoing emotional
trauma Davis “inflicted on” the couple: Davis caused Duncan
to suffer “frustration,” “hostility,” “anger,” and “bitterness,”
and to abandon her plans to retire in Saint Croix because she
“no longer felt safe” there. App. 147–50. Finally, the
Government blamed Davis for the couple’s breakup, claiming
that Davis’s crime “generated [a] conflict” and “underlying
tension” such that “[t]hey are no longer together.” App. 149.
The prosecutor explained that the victims were
“traumatized” and “did not want to go through it again” by
testifying at trial. App. 151. Resolving the case through a plea
agreement, he added, avoided further emotional impact for the
couple—who feared “they might be . . . target[ed]” by
individuals associated with the defendants if they testified
against Davis. App. 153. Davis’s counsel then interjected:
“[I]t’s sounding close to a breach . . . I’m not hearing the
government recommend the sentence which we agreed upon
and . . . expressing the position that . . . the sentence . . . is
sufficient and not greater than necessary.” App. 153–54. The
Government responded that it was “not deviating from the Plea
Agreement or the recommendation[]” but was simply offering
a balanced picture of Davis’s offense and the “perspectives
from the victims.” App. 154–55.

-- 5 of 21 --

6
Later, the Court asked the Government to respond to
Davis’s mitigating evidence, including the neuropsychological
report’s assertion that childhood head trauma had affected
Davis’s impulse control. The prosecutor answered that he was
“skeptical” of such reports and found them “self-serving.”
App. 160. He also noted that because the report was
unavailable when the parties executed the plea agreement, it
was not “part or parcel of the [Government’s]
recommendation.” App. 162. While Davis’s psychological
evidence “might be mitigating” and “probably support[ed]” a
low-end sentence, the Government insisted that it “d[idn’t]
explain away [Davis’s] conduct.” App. 161–62. Again, Davis’s
counsel objected, claiming that the Government’s position
“sound[ed] ... like” a breach of the plea agreement. App. 162.
This exchange prompted the Court to seek clarification:
“You are both . . . recommend[ing] . . . the same sentence. . . .
That does not mean that you have to come to that conclusion
because of the same reasons, right?” App. 162–63. Davis’s
counsel agreed, but added: “[F]or the government . . . to be
challenging whether my conclusion is correct, . . . by attacking
the basis for it, . . . sounds like a breach.” App. 163. The
Government responded that it couldn’t have relied on Davis’s
neuropsychological report because it “didn’t have that
information at the time . . . [the] recommendation” was
included in the plea agreement. Id. Davis countered that the
Government’s dismissive posture toward the mitigation
evidence undermined the parties’ recommendation. The
Government reiterated that it was “not challenging” the
defense’s neuropsychological report, “just not adopting it to
support [the Government’s] position.” App. 164. When the
Court asked Davis’s counsel to respond to the prosecutor’s
explanation, she receded: “I[] think saying [‘]I’m not

-- 6 of 21 --

7
challenging it[’] is a much better, firmer place to be than what
I was receiving. So I think that the government saying they’re
not challenging our expert report, I’m comfortable with that.”
Id.
On top of the statutory minimum of 84 months’
imprisonment for brandishing a firearm, the District Court
sentenced Davis to 102 months’ imprisonment on the
carjacking and felon-in-possession counts. As the Government
acknowledges, this is a sentence at the “mid-to-high” end of
the Guidelines range. Govt. Br. 8. Davis appealed.
II1
Davis contends the Government breached its promise to
recommend a low-end Guidelines sentence by emphasizing
“aggravating victim-impact evidence,” “the heinous nature of
the crimes, and . . . the permanent damage done to the victims.”
Davis Br. 14–15, 22. He further argues the Government
breached by “discount[ing] any value” of his mitigation
evidence and failing to “meaningfully argue . . . that the
sentence was appropriate based on the” 18 U.S.C. § 3553(a)
sentencing factors. Davis Br. 18, 19. As a result, Davis argues,
the Government’s allocution reads like a recommendation for
a sentence at or above the top of the Guidelines.
Before we consider the substance of those contentions,
we must determine the appropriate standard of review. The
Government argues that Davis waived objection to the
Government’s allocution when his counsel “indicated that her
1 The District Court had jurisdiction under 48 U.S.C. § 1612
and 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291.

-- 7 of 21 --

8
concerns had been resolved.” Govt. Br. 33. The Government
alternatively argues that Davis forfeited his breach claim by
failing to object clearly at sentencing.
“Waiver is the intentional relinquishment or
abandonment of a known right,” while “forfeiture is the failure
to make the timely assertion of a right.” United States v.
Dowdell, 70 F.4th 134, 140 (3d Cir. 2023) (cleaned up).
Although we cannot reach waived arguments, we may review
a forfeited claim—but only for plain error. See United States v.
Dahmen, 675 F.3d 244, 247–48 (3d Cir. 2012) (citing Puckett
v. United States, 556 U.S. 129, 133, 143 (2009)). To determine
whether Davis’s breach claim has been waived or forfeited, we
must first identify Davis’s arguments. He contends the
Government breached by: (1) emphasizing the heinous nature
of his crimes and the victim impact; (2) dismissing his
mitigation evidence; and (3) failing to argue that the § 3553(a)
factors supported a low-end Guidelines sentence.
The Government argues that Davis waived his breach
arguments by “taking the position” at sentencing “that any
breach could be, and in fact was, cured.” Govt. Br. 35. Davis
concedes that he waived objection to one of the prosecutor’s
statements when his counsel stated she was “comfortable” with
the Government’s position of “not challenging” Davis’s
neuropsychological report. App. 164. In stating that she
accepted the Government’s position on the report, Davis’s
counsel waived objection to all the prosecutor’s statements
about the defense’s mitigating evidence. Indeed, Davis’s
counsel acknowledged at oral argument that the waiver
extended more broadly to the Government’s remarks regarding

-- 8 of 21 --

9
the defense’s neuropsychological report.2 All the
Government’s allegedly breaching statements regarding
Davis’s mitigating evidence concern this report—so all three
of Davis’s objections raised during that part of the
Government’s allocution “depend on the same facts” and are
waived. United States v. Joseph, 730 F.3d 336, 342 (3d Cir.
2013).
But that waiver did not negate Davis’s earlier objection
to the Government’s comments emphasizing Davis’s
reprehensible conduct and the harm he inflicted on the victims.
We are loath to deem an objection waived without a clear
indication of a party’s intent to do so. See MBIA Ins. Corp. v.
Royal Indem. Co., 426 F.3d 204, 215 (3d Cir. 2005). Waiving
one argument waives another only if they both “depend on the
same legal rule” and “the same facts.” Joseph, 730 F.3d at 342.
Because Davis’s earlier objection depended on different facts
than those underlying his withdrawn objection, it was not
waived. So the cases cited by the Government supporting its
waiver argument are inapt, as they involved explicit
withdrawals of prior objections. Unlike those cases, Davis
never expressly withdrew his first objection to the
Government’s comments about his conduct, character, and the
victim impact.
The Government contends that, even if Davis did not
waive all his objections, he forfeited them by failing to clearly
2 The Court: So [the withdrawn objection] relates to the
[Government’s] challenge to the expert report?
Counsel: . . . Yes . . . .
Oral Arg. 10:43–11:01.

-- 9 of 21 --

10
argue that the prosecutor’s allocution violated the plea
agreement. It notes that Davis’s counsel accused the prosecutor
only of coming “close to a breach.” Govt. Br. 32.3 In
determining whether a claim of error has been preserved, we
use “a flexible, common-sense interpretation.” United States v.
Miller, 833 F.3d 274, 283 (3d Cir. 2016) (citation omitted).
And although “a party must present the issue squarely to the
district court, we do not require any particular incantation.” Id.
(cleaned up). After the prosecutor recounted Davis’s
intentional crimes, the physical and emotional harm suffered
by the victims, and the Government’s desire to avoid re-
traumatizing the couple, Davis’s counsel interjected. She
asserted that the prosecutor was neither “recommend[ing] the
sentence” the parties “agreed upon” nor “expressing the
position that . . . the sentence . . . is sufficient and not greater
than necessary.” App. 153–54. This objection closely followed
the Government’s allegedly offending statements, used the
word “breach,” and explained why the prosecutor’s comments
undermined the agreement. So Davis preserved his arguments
alleging the Government breached by (1) criticizing Davis’s
conduct and character; (2) emphasizing the victim impact; and
(3) failing to tether its recommendation to the § 3553(a)
3 The Government emphasizes that Davis “did not object to the
Government’s sentencing memorandum” despite its references
to Davis’s crimes and victim impact. Govt. Br. 31. But failing
to object to a pre-sentencing memorandum does not forfeit
later objections to the Government’s conduct at sentencing. Cf.
United States v. Yusuf, 993 F.3d 167, 178 n.7 (3d Cir. 2021)
(the government’s plea breach argument was preserved,
despite failing to object to the defendant’s presentence filings,
because the prosecutor objected at sentencing).

-- 10 of 21 --

11
factors. We review these arguments de novo. See United States
v. Yusuf, 993 F.3d 167, 175 n.5 (3d Cir. 2021).
III
Turning to the merits of Davis’s breach claim, we first
note that there was no express breach of the plea agreement.
The Government neither explicitly disavowed the “low end”
recommendation nor requested a sentence at the mid-to-high
end of the Guidelines range. But Santobello v. New York, 404
U.S. 257 (1971), “and its progeny proscribe not only explicit
repudiation of the government’s assurances, but . . . [also]
forbid end-runs around them.” United States v. Badaracco, 954
F.2d 928, 941 (3d Cir. 1992) (citation omitted). So the
Government breaches a plea agreement when its overall
conduct is “inconsistent with what was reasonably understood
by the defendant when entering” a guilty plea. United States v.
Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998) (citation
omitted).
We derive this rule from the “contract-law standards”
governing plea agreements. United States v. Moscahlaidis, 868
F.2d 1357, 1361 (3d Cir. 1989). Those standards “emphasize[]
faithfulness to an agreed common purpose and consistency
with the justified expectations of the other party.” Restatement
(Second) of Contracts § 205 cmt. a (1981). And because a
defendant surrenders several constitutional rights by entering
into a plea agreement, courts must “scrutinize closely the
promise[s] made by the government” to determine whether
those promises have been fulfilled. Nolan-Cooper, 155 F.3d at
236 (citation omitted). In sum, the Government must honor the
spirit, as well as the letter, of the plea agreement. See
Badaracco, 954 F.2d at 940.

-- 11 of 21 --

12
A
Under our precedents, the Government violated the
plea agreement by repeatedly underscoring the reprehensibility
of Davis’s conduct. In Moscahlaidis, we held that the
Government breached a promise “to take no position as to
whether a custodial sentence should be imposed” where the
prosecutor “offered opinions and drew conclusions about [the
defendant’s] character.” 868 F.2d at 1363. The prosecutor
emphasized that the defendant was “not just a white-collar
criminal” and highlighted “the depth of [his] greed[,] . . . moral
bankruptcy,” and “utter contempt for the welfare of his fellow
man.” Id. at 1362. Those comments, we held, were “a
transparent effort to influence the severity of [the defendant’s]
sentence” in violation of the plea agreement. Id. (cleaned up).
Similarly, in United States v. Nolan-Cooper, we held
that the Government breached its promise to recommend a
sentence within Nolan-Cooper’s 41 to 51 months Guidelines
range. But at sentencing the district court calculated the range
at 63 to 78 months’ imprisonment. Then, during allocution, the
Government called the defendant’s conduct “knowing[] and
deliberate[],” “egregious,” and “callous and calculating
attempts to subvert the law.” 155 F.3d at 238 (emphasis added).
It also stressed that Nolan-Cooper “was not forced . . . by
economics or . . . duress, to commit [her] crimes.” Id. Though
the Government recommended a sentence “within the plea
agreement,” we held that its statements regarding Nolan-
Cooper’s conduct and character “c[ould] only be interpreted as
an attempt to influence the court to impose a longer sentence
than stipulated to in the agreement.” Id. at 239–40.
Taken together, Moscahlaidis and Nolan-Cooper
establish that, when the Government highlights the

-- 12 of 21 --

13
reprehensibility of the defendant’s conduct or extensively
criticizes his character, culpability, or blameworthiness, it
essentially recommends a higher sentence. Here, though the
Government agreed to recommend a sentence at the low end of
Davis’s Guidelines range, it repeatedly emphasized Davis’s
unrepentant intentionality:
[E]ven with the defendant’s impulse control
limitations, he had ample time . . . where [h]e
could have tapped out . . . and he did not. . . .
[Davis] . . . didn’t have to leave [the victims]
naked fending for themselves with that
victimization and embarrassment. . . . [W]e have
a conscious thought process, well beyond any
impulse issue. And he disregarded what was
right; he disregarded what he was inflicting upon
those victims, and he chose to continue that
course of conduct and that behavior and that
violent offense[.]
App. 145–46. As in Nolan-Cooper, the Government
emphasized Davis’s deliberate intent while also dismissing
potential contributing factors. And the prosecutor’s description
of Nolan-Cooper’s conduct as “callous and calculating”
resembles the Government’s remark that Davis “disregarded
what was right; [and] disregarded what he was inflicting upon
th[e] victims.” App. 146. In Nolan-Cooper, the prosecutor
emphasized that the defendant’s money laundering scheme
was “particular[ly] egregious” because she was an attorney.
155 F.3d 238 (citation omitted). Likewise, the Government
here stressed that Davis and his codefendants exploited a
position of trust—as Davis’s codefendant had previously
worked for O’Dea and recruited Davis to commit the robbery
after learning that “the[] [victims] ha[d] money.” App. 147.

-- 13 of 21 --

14
Simply put, the Government’s statements supported a higher
sentence by accentuating the reprehensible nature of Davis’s
conduct.
Davis also claims the prosecutor breached the plea
agreement by “concentrat[ing]” its allocution “on aggravating
victim-impact evidence.” Davis Br. 14–15. We have never held
that victim-impact evidence undermines a low-end Guidelines
recommendation per se. But we have held that the Government
breaches an agreement to make no sentencing
recommendation, or to recommend a within-Guidelines
sentence, by using victim-impact evidence to implicitly
support a higher sentence. For instance, in United States v.
Hodge, we held that the prosecutor breached an agreement “to
make no specific sentencing recommendation other than to
request that the sentence be within the guideline range” by
stating that Hodge’s victims “did not get a second chance to be
a positive influence in the community” and “urg[ing] the Court
to fashion a sentence that is fair and just to the victims.” 412
F.3d 479, 487 (3d Cir. 2005) (quotations omitted). The “plain
implication” of those statements, we reasoned, was the
Government’s preference for a life sentence. Id.
Some of our sister courts have held that the Government
breaches an agreement to recommend a low-end Guidelines
sentence where, as here, the prosecutor recounts the
defendant’s crime while emphasizing the harm suffered by the
victims. For instance, in United States v. Gonczy, the
prosecutor noted that Gonczy had defrauded “innocent
victims” and “ruined many lives,” including “the lives of his
own children,” through an illegal telemarketing scheme. 357
F.3d 50, 53 (1st Cir. 2004). The court held that these statements
breached the Government’s promise to recommend a low-end
Guidelines sentence. Id. Though the prosecutor “stopped short

-- 14 of 21 --

15
of explicitly repudiating the agreement,” the court concluded
that the Government’s allocution “undercut, if not eviscerated”
the parties’ sentencing recommendation because “no fair
reading of [the prosecutor’s] argument . . . would lead an
impartial observer to think that [she] thought [the low end] was
an adequate sentence.” Id. at 54 (cleaned up).
The reasoning of Hodge and Gonczy supports Davis’s
breach claim. The Government devoted much of its allocution
to the physical and emotional trauma inflicted on Duncan and
O’Dea. The prosecutor said that he wanted to give the Court
the “perspectives from the victims.” App. 155. Cf. Hodge, 412
F.3d at 487 (urging the Court to be “fair and just to the victims”
in sentencing). And so he did, recounting the victims’
harrowing ordeal in great detail, including the assaults, threats,
and humiliation; the demise of the couple’s relationship; the
lingering feelings of anger, fear, and resentment; and the loss
of security.
[Duncan] and . . . O’Dea wake up to guns,
punches, threats, and are assaulted in the middle
of the night . . . . [T]hey are victimized verbally,
physically, [and] traumatized with . . . threats,
[“]I’ll kill you.[”] And Ms. Duncan makes a
reference that one of them threatened to rape her.
App. 147. Statements like these are typically fair game in most
sentencing hearings. But where, as here, the Government has
agreed to recommend a sentence at the low end of the
Guidelines range, its allocution must align with that
recommendation. The Government’s vivid recapitulation of
Davis’s crime and the victims’ plight supported a harsh, not a
lenient, sentence. See United States v. Johnson, 187 F.3d 1129,
1135 & n.6 (9th Cir. 1999) (the Government’s victim impact

-- 15 of 21 --

16
statements, coupled with its unenthusiastic support for a low-
end sentence, breached the plea agreement).
For the foregoing reasons, we conclude that the
prosecutor’s allocution was inconsistent with Davis’s
reasonable expectations in entering the plea agreement. The
Government’s comments highlighting Davis’s intent, the
reprehensible nature of his crime, and the harm suffered by the
victims “could [not] possibly be construed as advocating for
the lower half of the [Guidelines] range.” Nolan-Cooper, 155
F.3d at 240. Accordingly, we hold that the Government
breached the plea agreement.4
B
The Government responds that, while some of its
comments “approached the line,” its allocution was consistent
with the plea agreement. Govt. Br. 43. It argues that the
prosecutor’s discussion of “aggravating factors” at sentencing
was appropriate because: (1) the plea agreement did not forbid
it; (2) the Court expected to hear “a more nuanced
recommendation” after Davis’s allocution; and (3) doing so
was necessary to dissuade the Court from applying a
downward variance. Govt. Br. 39–40. It also argues that (4) the
prosecutor technically complied with the agreement by
“repeatedly stat[ing]” in response to Davis’s objections “that
he stood by the plea agreement and was not seeking to breach
or undermine it.” Govt. Br. 43. These arguments are
4 Having concluded that the prosecutor breached the agreement
by emphasizing the brutal nature of Davis’s crimes and the
harm inflicted on the victims, we need not consider Davis’s
argument that the Government failed to tether its
recommendation to the 18 U.S.C. § 3553(a) factors.

-- 16 of 21 --

17
unpersuasive.
The absence of language in the plea agreement
prohibiting the Government from discussing Davis’s criminal
conduct and the victim impact does not absolve its breach. In
Nolan-Cooper, we held that the Government could not “rely
on a general provision of the plea agreement permitting it to
comment on the facts of the case to defeat the purpose of a
specific provision.” Nolan-Cooper, 155 F.3d at 237 (emphasis
added). Unlike the broad provisions invoked by the
Government in Nolan-Cooper, Davis’s plea agreement says
nothing about the scope of the Government’s right to discuss
Davis’s conduct, let alone any aggravating factors. Instead of
affording the Government latitude, the agreement here puts the
Government on even weaker footing.
Nor can the Government defend its allocution by calling
it a “nuanced” presentation meant to address anticipated
questions from the Court. We rejected a similar argument in
Nolan-Cooper, where the Government claimed its statements
were made “in response to a question by the court.” Id. at 238.
We stressed that the Government must uphold its promise even
though the court’s inquiries “may place the government in an
uncomfortable situation, [and] it still must inform the court that
it cannot answer the question without breaching its plea
agreement. Sometimes ‘the better part of valor is discretion.’”
Id. (citations omitted).
Here again, the Government’s allocution is less
defensible than the prosecutor’s in Nolan-Cooper. The
Government claims its comments regarding Davis’s crimes

-- 17 of 21 --

18
and the victim impact were directed at anticipated questions.5
Had the Court asked those questions, the Government was
obliged to respond that the plea agreement forbade further
comment. Cf. United States v. Crusco, 536 F.2d 21, 26 (3d Cir.
1976) (“An unqualified promise of the prosecution . . .
obviously jeopardizes the Government’s position in . . .
sentencing[,] [yet] may require the Government to remain
silent when it should stand up and speak.”). Alternatively, the
Government could have referred the Court to the record or, if
it could do so without undermining the agreement, offered a
measured response—providing only the information necessary
to address the Court’s inquiries. See United States v. Warren,
8 F.4th 444, 448 (6th Cir. 2021) (“[A] line exists between
advocacy, on one hand, and providing the district court with
relevant factual information, on the other hand.”) (cleaned up).
Instead, the Government underscored the victim’s suffering
and Davis’s unflagging commitment to the crime. And it did
so without offering any convincing support for the low-end
Guidelines sentence it had promised to recommend.
The Government also contends that its comments were
intended not to undermine the low-end recommendation but to
discourage the Court from applying a downward variance.
Where a “plea agreement contain[s] no language prohibiting
the government from defending against a . . . variance” request,
the Government can present aggravating evidence to “defen[d]
5 The Court’s indication that it “expect[ed]” to hear about “the
victims” and the other “side to this equation” came after
Davis’s attorney objected to the Government’s detailed
recitation of Davis’s crime and the harm suffered by the
victims. App. 155.

-- 18 of 21 --

19
against” such a request without violating “the spirit of the
agreement.” United States v. Yanez-Rodriguez, 555 F.3d 931,
941 (10th Cir. 2009). But Davis never requested a variance and
the District Court never intimated that it was considering one.
So this argument is a nonstarter. Cf. Gonczy, 357 F.3d at 54
(rejecting the “argument that the prosecutor[’s]” discussion of
victim impact “merely anticipat[ed] the [defendant’s] request
for a downward departure”).
Finally, we are not swayed by the Government’s
argument that it fulfilled its promise, despite highlighting
Davis’s culpability and the victim impact, by “expressly and
repeatedly request[ing] a sentence at the bottom of the . . .
guideline range.” Govt. Br. 43. We reject “such a strict and
narrow interpretation of [the Government’s] commitment.”
Crusco, 536 F.2d at 26. The Government must do more than
recite the magic words that it “recommends” a low-end
sentence—it must also avoid statements that undermine the
recommendation. See Badaracco, 954 F.2d at 939. In other
words, “the government . . . may not introduce its agreed-upon
terms with a wink and a nod.” Lacombe v. Warden James T.
Vaughn Corr. Ctr., 95 F.4th 127, 135 n.11 (3d Cir. 2024).
Because that is precisely what happened here, we hold that the
Government breached the plea agreement.
IV
Having concluded that the Government breached the
plea agreement, we turn to whether the Government cured its
breach.6 Applying the Supreme Court’s decision in United
6 As noted in our discussion of waiver, Davis’s counsel’s
statement that she was “comfortable” with the Government’s
position pertained only to the neuropsychological report. That

-- 19 of 21 --

20
States v. Puckett, we recently held that “the prosecution can
cure some breaches of plea agreements” and we adopted a two-
step test to guide our inquiry. United States v. Cruz, 95 F.4th
106, 112 (3d Cir. 2024). “First, we gauge whether cure is
needed or even possible. Second, we decide whether the
attempted cure sufficed to remedy any harm from the breach.”
Id. An attempted cure is effective only if it is prompt, clear, and
gives the defendant the benefit of his bargain. Id.
Assuming that the Government could have cured its
breach, it did not do so here. If, after addressing Davis’s
conduct and the victim impact, the prosecutor had pivoted and
argued that despite the aggravating factors, other
considerations merited a low-end Guidelines sentence, that
might have sufficed to cure the breach. Instead, when prompted
by Davis’s objections, the prosecutor offered only cursory
assurances that the Government stood by the recommendation.
Indeed, the Government’s primary justification for the low-end
sentence was that it secured Davis’s guilty plea and spared the
victims an emotional trial. And while this speaks to the
Government’s rationale for accepting the agreement, it does
not recommend a low-end sentence—i.e., it does not explain
why the sentence is appropriate for Davis. Because the
Government did not promptly and clearly repudiate its breach,
we hold that the breach was not cured.7
could not be viewed as curing previous objections to the
Government’s comments emphasizing the heinous nature of
Davis’s crime.
7 We need not decide today whether a plea breach to which
defense counsel promptly objected is separately subject to
harmless error analysis or how the harmless error standard in

-- 20 of 21 --

21
V
When we review the Government’s fulfillment of its
promises in a plea agreement, we “give the benefit of any doubt
to the defendant, given the government’s tremendous
bargaining power . . . and the fact that the defendant, by
entering into the plea, surrenders a number of [his]
constitutional rights.” United States v. Davenport, 775 F.3d
605, 609 (3d Cir. 2015) (cleaned up). And while our inquiry is
“fact-specific, the basic rules are clear.” Hodge, 412 F.3d at
485. Prosecutors are bound by the letter and spirit “of the
bargains [they strike] with defendants,” id. (cleaned up), and
“[o]nce [the Government] makes a promise, Santobello
requires strict adherence,” Crusco, 536 F.2d at 26.
For the reasons stated, we will vacate Davis’s sentence
and remand for resentencing. Though “the need for
resentencing was caused by the government and is not
attributable to any error by the sentencing judge,” we will
remand to a different district judge for resentencing. See
Nolan-Cooper, 155 F.3d at 241. In doing so, we leave to the
District Court’s discretion the imposition of a just sentence.
this context would differ from cure because here, as in Cruz,
“the government has not shown that its breach was harmless”
and “the prosecution did not correct its legal error. So under
any standard, the prosecution loses.” Cruz, 95 F.4th at 113.

-- 21 of 21 --