No Plea-Agreement Breach When the Government Concedes a Guidelines Error but Continues to Recommend the Bargained-for Sentence

Introduction

In United States v. Robert Messersmith (6th Cir. Jan. 13, 2026), the Sixth Circuit addressed whether the government breaches a Rule 11(c)(1)(B) plea agreement at sentencing when the presentence report (“PSR”) identifies a higher Guidelines base offense level than the parties contemplated, and the government (i) acknowledges the PSR’s correct calculation but (ii) still urges the court to impose a sentence consistent with the plea agreement’s recommended offense level.

Defendant Robert Messersmith pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The plea agreement contemplated a base offense level of 20 (based on one qualifying prior controlled substance felony), plus a firearms-related enhancement and acceptance-of-responsibility reduction. The PSR later concluded Messersmith had two qualifying controlled-substance felonies, raising the base offense level to 24, and also recommended a reckless-endangerment-while-fleeing enhancement. The district court adopted the PSR and imposed a bottom-of-the-range 110-month sentence.

On appeal, Messersmith argued (1) the government breached the plea agreement by not objecting to the higher base offense level and the reckless-endangerment enhancement and (2) the sentence was procedurally and substantively unreasonable.

Summary of the Opinion

The Sixth Circuit affirmed. Applying plain-error review, the court held there was no breach because:

  • The plea agreement expressly allowed either side to “object to or argue in favor of other calculations,” so the government was not obligated to object to the PSR’s reckless-endangerment enhancement.
  • The government did not breach the agreement by candidly acknowledging the PSR’s corrected base offense level of 24 while still recommending a sentence consistent with the plea agreement’s contemplated offense level.
  • In any event, Messersmith could not show prejudice because the district court had an independent obligation to calculate the Guidelines correctly, and there was no reasonable probability the court would have used the lower base offense level once the PSR documented the additional qualifying conviction.

The court also rejected the procedural- and substantive-reasonableness challenges, emphasizing the district court’s consideration of 18 U.S.C. § 3553(a) and the presumption of reasonableness for a within-Guidelines sentence.

Analysis

Precedents Cited

1. Standards of review and plea-breach framing

  • United States v. Barnes: Established that unpreserved plea-agreement breach claims are reviewed for plain error. The panel used Barnes to set the threshold Messersmith had to meet because he did not raise breach at sentencing.
  • Greer v. United States: Restated the three-part plain-error framework (error, plainness, effect on substantial rights). The court relied on Greer to emphasize that Messersmith bore the burden to show not only a breach, but a clear/obvious one with prejudice.
  • Puckett v. United States: Supplied the key prejudice principle in plea-breach plain-error review—no relief absent a showing that the defendant likely would have obtained the benefit of the bargain. Puckett underpinned the Sixth Circuit’s “even-if-breach” holding that Messersmith could not show a different outcome.

2. Interpreting the scope of the government’s promises

  • United States v. Fitch: Illustrates construing ambiguity in plea agreements against the government and finding a breach where an agreement restricted reliance on “other relevant conduct” but the government pursued a leadership enhancement. Here, Fitch served as a contrast: Messersmith’s agreement was not ambiguous; it expressly reserved the ability to litigate “other calculations,” weakening any breach theory.
  • United States v. Simmonds: Reinforced that if the scope of promises is debatable, any breach generally cannot be “clear or obvious.” The panel invoked Simmonds to show that the agreement’s reservation clause foreclosed a “plain” breach claim.
  • United States v. Carter: Provided the closest functional analogue: the government may acknowledge that a plea’s Guidelines estimate was wrong, agree with the PSR’s corrected calculation, and still avoid breach if it continues to recommend a sentence consistent with the plea agreement rather than urging the higher range. Carter essentially supplied the doctrinal bridge for the court’s conclusion that candor about correct Guidelines does not equal repudiation of the deal.
  • United States v. Keller: Supported the panel’s prejudice analysis by recognizing that where the district court correctly follows the PSR’s higher range, the defendant cannot show entitlement to a lower Guidelines calculation merely because the plea agreement contemplated it. Keller reinforced that the court’s independent duty to apply correct Guidelines limits claimed “benefit-of-the-bargain” expectations.

3. Sentencing review framework

  • United States v. Bostic: Set plain-error review for unpreserved procedural-reasonableness objections, framing the lens through which the panel evaluated Messersmith’s procedural claim.
  • Gall v. United States: Supplied the canonical list of procedural sentencing errors and the baseline reasonableness framework the Sixth Circuit applied.
  • United States v. Husein: Confirmed that district courts need not address every § 3553(a) factor explicitly. The panel relied on Husein to reject the claim that the judge failed to consider Messersmith’s “history and characteristics.”
  • United States v. Drake: Cited for district-court discretion to prioritize which § 3553(a) factors matter most, and to emphasize some penological goals over others.
  • United States v. Vonner: Served two roles: (i) deference where the record shows the court listened and explained its rationale; and (ii) the rebuttable presumption of reasonableness for within-Guidelines sentences.
  • United States v. Gates: Provided the abuse-of-discretion standard for substantive reasonableness.
  • United States v. Rayyan: Clarified substantive unreasonableness as an imbalance in weighing § 3553(a) factors (too much weight on some, too little on others).
  • United States v. Adkins: Reinforced that a sentence is not substantively unreasonable merely because the defendant would have balanced the factors differently.

4. Ineffective assistance claims (declined on direct appeal)

  • United States v. Ferguson, United States v. Brown, United States v. Aguwa: Stated the general rule that ineffective-assistance claims should be brought in a post-conviction proceeding under 28 U.S.C. § 2255, not on direct appeal, due to the underdeveloped record.
  • United States v. Lopez-Medina: Recognized the “rare” exception permitting direct-appeal review where the error is apparent from the existing record; the panel found the record did not satisfy that exception.

Legal Reasoning

1. Reservation clauses matter: “other calculations” preserved litigation flexibility

The court treated the plea agreement as a contract whose text governs the parties’ obligations. The crucial text allowed either party to “object to or argue in favor of other calculations.” That clause did two things:

  • It foreclosed an argument that the government had promised to oppose any enhancements not expressly listed in the agreement.
  • It insulated the government from a “breach-by-silence” theory when the PSR included an enhancement (reckless endangerment while fleeing) that the parties had not stipulated away.

The opinion thus signals a practical drafting and litigation lesson: where the agreement preserves the right to contest calculations, defendants face a steep climb in recasting subsequent Guidelines disputes as breaches.

2. Candor about correct Guidelines is not a repudiation of the plea deal

The panel drew a line between (a) acknowledging that the PSR’s Guidelines calculation is correct and (b) advocating a higher sentence in contravention of the plea agreement. It held the government stayed on the permissible side of that line: it admitted the plea’s base offense level estimate was wrong due to a missed prior conviction, but it still urged a sentence tied to the plea’s contemplated offense level (seeking 96 months based on total offense level 21).

The reasoning reflects a broader sentencing norm: district courts must calculate the Guidelines correctly even if parties agree otherwise, and the parties’ recommendations cannot lawfully “lock in” an incorrect range. The government’s acknowledgment of the correct range, without leveraging it to demand a harsher sentence than promised, was treated as compatible with its contractual duty.

3. Independent judicial duty to calculate Guidelines correctly drives the prejudice analysis

Even assuming a breach, the court held Messersmith could not show a reasonable probability of a lower Guidelines calculation once the PSR established two qualifying controlled-substance felonies. Because the sentencing court must compute the correct Guidelines, Messersmith could not show he was deprived of a realistic “benefit” tied to an incorrect base offense level.

4. Reasonableness review: adequate explanation and permissible factor-weighting

On procedural reasonableness, the court found the district judge meaningfully addressed Messersmith’s traumatic background and tied that history to treatment recommendations, while also emphasizing deterrence, public protection, and respect for the law under § 3553(a). On substantive reasonableness, the panel deferred to the district court’s decision to weigh criminal history heavily, especially given the bottom-of-the-Guidelines sentence and the presumption of reasonableness.

Impact

  • Plea-breach doctrine (Sixth Circuit): The decision reinforces that where a plea agreement preserves the right to litigate “other calculations,” the government’s failure to object to PSR enhancements will rarely constitute a clear/obvious breach—especially under plain-error review.
  • Guidelines-miscalculation discovered post-plea: The opinion strengthens the “Carter” principle that the government may acknowledge an error in the plea’s Guidelines estimate and accept the PSR’s corrected calculation without breaching, so long as it continues to recommend a sentence consistent with its bargain rather than exploiting the higher range.
  • Prejudice barrier under Puckett: Defendants alleging breach based on incorrect Guidelines estimates face a difficult prejudice showing when the correct calculation is legally compelled by the record and the court’s independent duties.
  • Sentencing appeals: The case underscores the importance of preserving objections at sentencing; unpreserved claims are filtered through plain-error standards that are difficult to satisfy.

Complex Concepts Simplified

  • Rule 11(c)(1)(B) plea agreement: An agreement where the parties make sentencing recommendations, but the court is not bound by them.
  • Presentence report (PSR): A probation-prepared report that calculates the advisory Sentencing Guidelines and summarizes relevant facts (criminal history, offense conduct, etc.) for sentencing.
  • Base offense level / enhancements / reductions: The Guidelines start with a base number (“base offense level”), then add “enhancements” (e.g., reckless endangerment while fleeing) and subtract “reductions” (e.g., acceptance of responsibility) to reach a “total offense level.”
  • Plea agreement “breach”: Occurs when the government fails to do what it promised in the plea deal at sentencing (for example, recommending a harsher sentence than agreed). Here, the court distinguished between acknowledging correct law/facts and advocating contrary to the bargain.
  • Plain error review: When a defendant failed to object in the district court, the appellate court grants relief only for clear mistakes that likely affected the outcome.
  • Procedural vs. substantive reasonableness: “Procedural” asks whether the court followed the correct steps (correct Guidelines, consider § 3553(a), explain). “Substantive” asks whether the length of the sentence is reasonable in light of § 3553(a).
  • Within-Guidelines presumption: A sentence inside the properly calculated Guidelines range is presumed reasonable on appeal, though the defendant can rebut that presumption.

Conclusion

United States v. Robert Messersmith clarifies (and effectively strengthens) a practical rule in Sixth Circuit plea practice: the government does not breach a Rule 11(c)(1)(B) plea agreement by conceding that a PSR correctly calculates a higher Guidelines range than the parties anticipated, so long as the government continues to advocate for the bargained-for sentencing recommendation and the agreement reserves the ability to litigate other calculations. The decision also illustrates how the district court’s independent duty to calculate the Guidelines correctly—and the demanding prejudice requirement under Puckett v. United States—can be decisive in rejecting unpreserved breach claims.