Non‑Prosecution Promises Do Not Bar Sentencing Advocacy on Covered Conduct When the Plea Reserves Broad Sentencing Disclosure Rights

1. Introduction

In United States v. Noles (10th Cir. Aug. 26, 2026) (Order and Judgment), Jerry Wayne Noles appealed a 40-month prison sentence imposed after he pleaded guilty to a single-count information charging conspiracy to commit bank fraud involving home-construction loans from First National Bank & Trust Co. (FNB). In exchange, the government dismissed a 14-count indictment and agreed it would “not further prosecute” Noles for specified conduct tied to FNB false statements, PPP loan applications and transfers, and bankruptcy attestations.

The appeal raised two sentencing issues:

  • Plea agreement breach: Whether the government’s reliance at sentencing on conduct listed in the “not further prosecute” clause breached the agreement.
  • Substantive reasonableness: Whether a 40-month upward variance (from a recalculated 12–18 month advisory range) was substantively unreasonable under 18 U.S.C. § 3553(a).

The Tenth Circuit affirmed, holding there was no plain error breach and the sentence was within the district court’s discretion.

2. Summary of the Opinion

  • No breach (plain-error review): The court held that a promise to “not further prosecute” certain crimes did not plainly and obviously bar the government from discussing that conduct at sentencing—especially where the plea agreement expressly reserved the government’s right to inform the court of “all other activities” it deemed relevant to sentencing.
  • Sentence affirmed as substantively reasonable: The court upheld the 40-month term, emphasizing the district court’s individualized § 3553(a) analysis, its reliance on the seriousness and breadth of fraudulent behavior (including dismissed/uncharged conduct), and the limited value of post hoc national sentencing statistics not presented below.

3. Analysis

A. Precedents Cited

i. Interpreting plea agreements; breach and plain-error standards

  • United States v. Wilson, 137 F.4th 1127 (10th Cir. 2025): The court applied Wilson’s framework—plea agreements are interpreted with contract principles, construed against the government as drafter, and reviewed through the defendant’s “reasonable understanding.” Wilson supplies the interpretive lens, but it does not establish that “not further prosecute” includes “do not mention at sentencing.”
  • United States v. Rockwell Int'l Corp., 124 F.3d 1194 (10th Cir. 1997): Rockwell cautions against “rigidly literal” constructions that evade obligations, while also refusing to impose obligations not express or implied. Noles used this theme to argue “prosecute” should be read broadly; the panel instead emphasized that the agreement’s surrounding clauses made the government’s sentencing use of conduct foreseeable and permitted.
  • United States v. Ruiz, 125 F.4th 1342 (10th Cir. 2025), and Puckett v. United States, 556 U.S. 129 (2009): These cases controlled the outcome procedurally. Because Noles did not raise the breach claim in the district court, the panel applied plain-error review. Under Puckett, even if a breach is alleged, it is not “plain” where the government’s commitment is “open to doubt.” The panel found doubt—plus contrary circuit authority—fatal to any claim of “clear or obvious” error.
  • United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012): De Vaughn provided the key plain-error principle: when there is no binding Supreme Court or circuit authority compelling the defendant’s view and other circuits cut the other way, error “can rarely be plain.” This supported affirmance even if “prosecute” could bear multiple meanings.

ii. “Not to prosecute” vs. sentencing use of the same conduct

  • United States v. Streich, 560 F.3d 926 (9th Cir. 2009): The Ninth Circuit rejected a similar argument, holding no breach where the government “highlighted” the conduct at sentencing despite agreeing not to prosecute it. The Noles panel cited Streich as persuasive support that “non-prosecution” typically concerns charging decisions, not sentencing advocacy.
  • United States v. Allen, 75 F.3d 439 (8th Cir. 1996): The Eighth Circuit likewise found no breach where the government allowed alleged conduct to be considered as relevant conduct for guideline calculations, particularly where the agreement contemplated guideline sentencing. Noles used Allen to reinforce that plea bargains often coexist with broad sentencing consideration.
  • United States v. Salazar, 909 F.2d 1447 (10th Cir. 1990): Salazar is the closest in-circuit analogue: a promise “not to bring further charges” did not restrict the government from expressing its views on the sentence. Noles relied on this “cf.” citation to show the Tenth Circuit has distinguished charging promises from sentencing advocacy.

iii. Substantive reasonableness; weighing § 3553(a)

  • United States v. Sample, 901 F.3d 1196 (10th Cir. 2018): Sample supplied the abuse-of-discretion standard and the court’s description of substantively unreasonable sentences as “arbitrary, capricious, whimsical, or manifestly unreasonable.” It framed the deferential review that carried the government’s position.
  • United States v. Cookson, 922 F.3d 1079 (10th Cir. 2019): Cookson enumerated the § 3553(a) factors and confirmed that review focuses on sentence length given “all the circumstances.” The panel used Cookson to structure the district court’s analysis as conventional and complete.
  • United States v. Zamora-Guerra, 169 F.4th 1026 (10th Cir. 2026): Zamora-Guerra was central in two ways: (1) variance sentences are not presumed unreasonable; (2) § 3553(a) factors need not receive equal weight. The panel relied on it to uphold the district court’s heavy emphasis on seriousness and just punishment.

iv. Sentencing disparities and extra-record statistics

  • United States v. Guevara- Lopez, 147 F.4th 1174 (10th Cir. 2025): The court acknowledged it may take judicial notice of Judiciary Sentencing Information (JSIN) data, but that did not help Noles because of preservation and comparability problems.
  • United States v. Doty, 150 F.4th 1351 (10th Cir. 2025): Doty limited the force of new statistics on appeal: substantive reasonableness review focuses on what was presented to the district court; a court cannot abuse its discretion by failing to consider facts never presented.
  • United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025): Cortez foreclosed disparity arguments built on “bare” national averages without showing similarly situated comparators. Noles used Cortez (and Zamora-Guerra’s similar reasoning) to reject reliance on generalized JSIN averages.

v. Considering uncharged conduct without replacing the guideline framework

  • United States v. Allen, 488 F.3d 1244 (10th Cir. 2007): Allen recognizes a limit: a sentence may be unreasonable if the court effectively abandons the guideline range and substitutes a calculation explicitly based on unrelated uncharged conduct. The panel distinguished that scenario, characterizing the district court’s use of other conduct as contextual rather than a replacement guideline system.

B. Legal Reasoning

i. Why “not further prosecute” did not bar sentencing advocacy (and was not plain error)

The panel’s reasoning hinged on both ordinary meaning uncertainty and contract context within the plea agreement:

  • Ambiguity in “prosecute”: Noles urged a broad dictionary meaning (“pursue for punishment”), while the government relied on a legal dictionary meaning tied to instituting and carrying out a legal action. With no Tenth Circuit or Supreme Court authority adopting Noles’s view—and with United States v. Streich and United States v. Allen (8th Cir. 1996) cutting against him—any alleged breach was not “clear or obvious” as required by Puckett v. United States on plain-error review.
  • Express reservation of sentencing disclosure: The plea agreement’s structure was decisive. Immediately following the “not further prosecute” paragraph, the government expressly “reserves the right” to inform the court of “the nature and extent” of Noles’s activities “with respect to this case” and “all other activities” it deemed relevant to sentencing. The panel read this as eliminating any reasonable expectation that the government had promised silence at sentencing about the very conduct it agreed not to charge.
  • Other plea terms corroborated the reading: The agreement also contemplated continued investigative work “required to prepare for further hearings,” including sentencing—reinforcing that sentencing would involve a broad factual presentation.

Taken together, the panel concluded the district court committed “no error, much less plain error,” by permitting the government’s sentencing argument.

ii. Why the 40-month upward variance was substantively reasonable

After the district court sustained Noles’s objection to the USSG § 2B1.1(b)(17)(A) gross-receipts enhancement (dropping the advisory range to 12–18 months), it still imposed 40 months based on § 3553(a). The Tenth Circuit affirmed because:

  • The district court anchored its decision in § 3553(a): It emphasized the seriousness of the bank-fraud conspiracy, greed and deception, personal benefit, and the need for just punishment and respect for law—traditional and permissible sentencing objectives.
  • Use of dismissed/uncharged conduct was contextual: The court acknowledged caution in weighing conduct “for which there has been no finding of guilt,” yet treated it as relevant background demonstrating a pattern rather than a single episode. The panel accepted this as consistent with individualized sentencing, not a forbidden substitution of a new “uncharged-conduct guideline.”
  • Gross receipts remained a permissible consideration even without the enhancement: Although the enhancement did not technically apply (because the home was half-owned by Noles’s wife), the court could consider the overall magnitude and purpose behind the enhancement in assessing just punishment and seriousness.
  • Disparity arguments failed on preservation and comparability: Noles’s JSIN statistics were not presented below (United States v. Doty), and in any event were too generalized to prove “unwarranted” disparities without showing similarly situated defendants (United States v. Cortez; United States v. Zamora-Guerra).

C. Impact

Although designated as an “Order and Judgment” and “not binding precedent” (except under law of the case, res judicata, and collateral estoppel), United States v. Noles has practical persuasive impact in three recurring areas:

  1. Plea drafting and interpretation: It underscores that a “not further prosecute” clause will not be read to bar sentencing advocacy where the agreement also contains a broad reservation allowing the government to present “all other activities” relevant to sentencing.
  2. Preservation matters for breach claims: The decision illustrates how difficult it is to win a breach claim under plain-error review, especially when the alleged breach turns on scope or semantics rather than an explicit contradictory promise.
  3. Variance litigation strategy: Defendants seeking to use national sentencing statistics must build the record in the district court and be prepared to show meaningful comparators; appellate courts will discount generic averages that do not account for plea posture, offense particulars, and individualized aggravators.

4. Complex Concepts Simplified

  • “Not further prosecute”: A promise not to bring (or continue) charges for specified conduct. It does not necessarily mean the government must ignore or remain silent about that conduct at sentencing—particularly if the plea explicitly allows broad sentencing disclosures.
  • “Plain error” review: A demanding appellate standard applied when an issue was not raised in the trial court. The defendant must show a clear and obvious legal mistake that affected substantial rights and seriously undermined the fairness or integrity of the proceedings.
  • “Substantive reasonableness”: A sentence-length review asking whether the punishment is reasonable in light of § 3553(a). Appellate courts give district judges wide discretion as long as they make an individualized assessment and provide rational, lawful reasons.
  • “Upward variance”: A sentence above the advisory guideline range based on § 3553(a) factors (as distinct from a “departure,” which is a guideline-structured adjustment).
  • “Dismissed/uncharged conduct” at sentencing: Conduct not resulting in conviction can still be considered in sentencing to provide context and inform § 3553(a) analysis, so long as the court does not effectively replace the guideline system with a new punishment scheme for unrelated, unadjudicated offenses.

5. Conclusion

United States v. Noles reinforces a practical rule of plea interpretation in sentencing: a non-prosecution promise ordinarily constrains charging decisions, not the government’s ability to describe relevant conduct at sentencing—especially where the plea agreement expressly reserves broad rights to present “all other activities” deemed relevant to sentencing. The decision also confirms the Tenth Circuit’s deferential posture toward upward variances grounded in individualized § 3553(a) reasoning, and it cautions that generalized national sentencing statistics—particularly those not presented to the district court—rarely establish “unwarranted sentencing disparities.”