Vacated by Supreme Court, June 20, 2005




                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 02-4844
AGNES HOLBROOK,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of Virginia, at Big Stone Gap.
                  James P. Jones, District Judge.
                          (CR-01-10023)

                      Argued: February 27, 2004

                       Decided: May 20, 2004

    Before WILLIAMS, KING, and DUNCAN, Circuit Judges.



Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Duncan joined. Judge King wrote a separate dissenting
opinion.


                             COUNSEL

ARGUED: Anthony Elmer Collins, Wise, Virginia, for Appellant.
Eric Matthew Hurt, Assistant United States Attorney, Newport News,
Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States
Attorney, Roanoke, Virginia, for Appellee.
2                    UNITED STATES v. HOLBROOK
                              OPINION

WILLIAMS, Circuit Judge:

   On March 24, 2001, Agnes Holbrook shot to death her estranged
husband, Larry Lee Holbrook. Shortly thereafter, a grand jury sitting
in the Western District of Virginia charged Holbrook in a two-count
indictment with violating 18 U.S.C.A. § 922(g)(9) (West 2000)
(Count One) and 18 U.S.C.A. § 922(a)(6) (West 2000) (Count Two)
in connection with the shooting. After a jury had been empaneled and
evidence presented as to both counts, Holbrook decided to enter into
a plea agreement with the Government, under which she agreed to
plead guilty as to Count One in exchange for a number of promises
from the Government, including its promise to dismiss Count Two.
After Holbrook breached the plea agreement by attempting to with-
draw her guilty plea, the Government elected to forego its promise to
dismiss Count Two and to oppose any attempt by Holbrook to with-
draw her guilty plea as to Count One. The district court found this
remedy permissible under the plea agreement, and the case proceeded
to trial on Count Two, after which a second jury found Holbrook
guilty. On appeal, Holbrook argues that the Government’s election of
remedies violates due process because, Holbrook asserts, she was
held to her end of the bargain, while the Government was free not to
perform its end of the bargain. Holbrook also argues that the second
jury trial on Count Two violated the Double Jeopardy Clause of the
Constitution, and that the district court erred at sentencing in finding
that she had acted with malice in killing her husband. For the reasons
that follow, we affirm.

                                   I.

                                  A.

   The facts are taken from Holbrook’s Presentence Investigation
Report (PSR), which the district court adopted as its factual findings
at sentencing, as well as evidence adduced at trial and at sentencing.
We accept these findings as true unless we find them to be clearly
erroneous. United States v. Stockton, 

, 764 (4th Cir.
2003).
                     UNITED STATES v. HOLBROOK                        3
   The charges against Holbrook in this case arise out of the March
24, 2001, shooting death of her husband, Larry. In the months prior
to March 2001, Holbrook and Larry had separated and had become
embroiled in a bitter divorce. Both had filed motions for protective
orders against each other on numerous occasions, Larry had started
a relationship with another woman, Stephanie Gibson, and he had told
several individuals that he was removing Holbrook as a beneficiary
of his government benefits and life insurance policies. On February
19, 2001, Holbrook purchased a .22 caliber pistol from a federally
licensed firearms dealer in Pennington Gap, Virginia. In filling out the
required screening paperwork, Holbrook indicated that she never had
been convicted of a misdemeanor crime of domestic violence, an
offense that disqualifies persons from possessing firearms, see 18
U.S.C.A. § 922(g)(9). In fact, she previously had been convicted of
assaulting her former husband, Clay Phillips, with a knife. Because
Holbrook committed this prior offense when her name was Agnes
Bernice Phillips, the record check performed by the dealer did not
reveal the conviction, and the dealer sold her the firearm. After test-
firing the pistol several days after purchasing it, Holbrook determined
that the gun was in need of repairs and had a friend return it to the
dealer.

   A few weeks later, on March 5, 2001, Holbrook lost her job. Her
employer, the Department of Social Services for Lee County, Vir-
ginia, forced her to resign after discovering that she had lied on her
job application about her criminal history. Holbrook believed that her
employer had made this discovery as the result of a tip from Larry.

   That same day, Holbrook set out to acquire a second firearm.
Almost immediately after resigning from work, Holbrook called a
friend, Jason Gibson (the estranged husband of Larry Holbrook’s par-
amour, Stephanie Gibson), to inquire about obtaining a firearm. Gib-
son eventually took Holbrook to the residence of his cousin, Steve
Wuderman, who sold Holbrook a .357 magnum handgun. Wuderman
was not a licensed firearms dealer. Holbrook test-fired the weapon,
made payment arrangements, and left the Wuderman residence with
Gibson.

   On March 24, 2001, Holbrook used the .357 magnum to shoot and
kill Larry in a dispute in the bedroom of her home. The precise details
4                    UNITED STATES v. HOLBROOK
of the shooting remain somewhat a mystery because Holbrook was
the only witness to the shooting, and, as explained below, her version
of events has changed significantly over time. Some facts about the
events of that date, however, are undisputed. First, record evidence
indicates that on the date of the shooting, Larry had been seen in a
light-hearted mood, and he had told someone that he was going to
pick up his kids to go play ball. Second, although it is unclear from
the evidence why Larry drove to Holbrook’s residence on March 24,
the evidence does show that Larry had a firearm in his car when he
arrived at the Holbrook residence and that he left that firearm in the
car when he went inside. Finally, evidence in the record shows that
Holbrook did not call the police until shortly after 6:00 pm, although
neighbors testified that they heard a single gun shot between 4:00 pm
and 4:45 pm.

   Initially, Holbrook told investigators that Larry had committed sui-
cide in front of her. The investigators’ examination of the forensic
evidence, however, led them to question Holbrook’s truthfulness. For
example, their investigation found that Larry Holbrook had no gun-
powder residue on his hands and his fingerprints were not found on
the weapon; Larry’s body had been moved at least three times after
death; and evidence indicated that the murder weapon had been wiped
clean.

   Later, at her first trial, and only after being confronted with the
forensic evidence described above, as well as evidence linking the
murder weapon to her, Holbrook admitted that she had shot Larry.
According to Holbrook’s trial version of events, Holbrook exited the
bathroom of her home, and saw Larry standing in the hallway with
her .357 magnum, which, Holbrook explained, Larry must have found
in its hiding place behind her dresser mirror. Larry then threatened to
kill her and a stand-off ensued. The couple ended up in the bedroom
with Larry on his knees on the floor and Holbrook on the bed. When
Larry laid the pistol on the bed, she grabbed the weapon and shot
Larry once in the face in an act of self-defense.

   At her second trial, Holbrook recanted much of this version of
events, testifying that although she may have killed Larry, she had no
recollection of exactly what happened.
                     UNITED STATES v. HOLBROOK                        5
                                  B.

   On April 25, 2001, a grand jury sitting in the Western District of
Virginia charged Holbrook in a two-count indictment with violating
18 U.S.C.A. § 922(g)(9) by possessing the .357 magnum after having
been convicted of a misdemeanor crime of domestic violence (Count
One) and 18 U.S.C.A. § 922(a)(6) by making false statements to a
firearms dealer in connection with her purchase of the .22 caliber pis-
tol from the federally licensed firearms dealer (Count Two). The Gov-
ernment tried Holbrook before a jury on these charges from August
21-23, 2001. At the close of the third day of trial, after the district
court ruled that Holbrook could not raise a justification defense in
response to the charges, Holbrook, represented by counsel, entered a
plea of guilty as to Count One pursuant to a written plea agreement
(the Agreement) with the Government, under which Holbrook agreed
to plead guilty as to Count One in exchange, inter alia, for the dis-
missal of Count Two. After a Rule 11 plea colloquy during which the
district court reviewed the terms of the Agreement with Holbrook and
her counsel, the district court accepted her plea and approved the
Agreement.

   Several months later, after the entry of her guilty plea but prior to
sentencing, Holbrook fired her trial counsel and hired new counsel,
and on November 5, 2001, filed a motion for leave to withdraw her
guilty plea. In a letter dated November 7, 2001, the Government
informed Holbrook that it considered any motion to withdraw her
guilty plea to be a breach of the Agreement, but that it was not
renouncing the Agreement or declaring it void. The Government
explained that it intended to hold Holbrook to her guilty plea as to
Count One, and instead of dismissing Count Two of the indictment,
it would retry Holbrook on that count. The Government further
explained that it took these actions pursuant to the Agreement.

  Six months later, the district court took evidence on Holbrook’s
motion to withdraw her plea, and on May 9, 2002, denied the motion.1
  1
   Applying our holding in United States v. Moore, 

(4th
Cir. 1991), the district court rejected Holbrook’s contentions that she
lacked mental capacity at the time of her plea and that she had a viable
defense to Count One. Holbrook does not challenge this ruling on appeal.
6                    UNITED STATES v. HOLBROOK
The Government then moved to continue sentencing as to Count One,
so that it could first try Holbrook on Count Two. On June 14, 2002,
the district court held a hearing on the Government’s motion, granted
it, and, on June 25, 2002, the district court memorialized its decision
in an opinion. See United States v. Holbrook, 

(W.D. Va. 2002). The district court explained that the remedy pursued
by the Government was allowed by Paragraph D(g) of the Agreement,
which granted the Government the authority to "refuse to abide by
any sentencing or other stipulations" in the Agreement, including its
promise to dismiss Count Two. 

   On July 12, 2002, Holbrook filed a motion to dismiss Count Two
on the ground that trying her under that count would be a violation
of her rights under the Double Jeopardy Clause because a jury previ-
ously had been empaneled and heard evidence on that count. On July
22, 2002, immediately prior to the commencement of the second trial,
the district court denied this motion on the record, explaining that
Holbrook effectively waived the defense of double jeopardy upon
execution of the Agreement. Holbrook was tried on Count Two from
July 22-26, 2002, and found guilty.

   The district court sentenced Holbrook on October 17, 2002. The
only contested issue at sentencing concerned the application of
§ 2K2.1(c)(1)(B) of the Sentencing Guidelines. See U.S. Sentencing
Guidelines Manual § 2K2.1(c)(1)(B) (2001). Specifically, the parties
disputed whether to cross-reference to the guideline for second degree
murder (U.S.S.G. § 2A1.2), or to the guideline for voluntary man-
slaughter (U.S.S.G. § 2A1.3). The Government argued that the second
degree murder guideline applied because Holbrook acted with malice.
The Government’s view of the facts was that Holbrook set a trap for
Larry on the day of his murder and then attempted to make the mur-
der appear to be a suicide. Holbrook, in contrast, took the position
that the voluntary manslaughter guideline should apply because the
shooting was impulsive and was the result of the heat of passion. Hol-
brook’s view of the facts was that Larry had come to her home that
day, confronted her with the murder weapon, and threatened to kill
her. Once the opportunity presented itself, Holbrook contended, she
took the gun and shot Larry out of fear for her own safety.

  Considering the evidence presented at the two trials, the facts pre-
sented in Holbrook’s PSR, and evidence adduced at the sentencing
                     UNITED STATES v. HOLBROOK                        7
hearing, the district court found by a preponderance of the evidence
that Holbrook acted with malice, and accordingly cross-referenced to
the second degree murder guideline. The district court explained its
reasoning as follows:

    I believe that her efforts, which have been documented to
    cover up the nature of the crime are highly circumstantial
    evidence of her malice in committing this crime. . . . I accept
    the evidence of the expert presented by the Government
    today that the body had likely been moved.

    I accept the evidence of the Government that the gun had
    been wiped clean, and placed under the deceased’s hand,
    again in an effort, it reasonably appears, to indicate that he
    had killed himself.

    The fact that he had a gun in his vehicle, but did not bring
    it into the house negates the defendant’s claim that he was
    the aggressor in this case. The fact, which I accept from the
    evidence, that the defendant had been seen earlier that day
    in a lighthearted mood, that he was not showing evidence of
    mental illness or other cause which would have caused him
    to want to kill her or himself, as she claims at one point he
    said he was going to do, the fact that she has changed her
    statements from the beginning over time, evidences to me a
    guilty conscience, an effort to escape responsibility.

    She certainly had motive for premeditation and malice, as
    the evidence has shown, without really any contradiction.
    The victim was considering changing her as his beneficiary,
    and that would have caused her to lose benefits.

    In addition, . . . I do not doubt that this was a rancorous
    divorce[.] [T]here’s every evidence . . . that the defendant
    was at a point where she felt hostility toward her husband,
    and they had been the subject of, he had been the subject of
    her going to court on numerous occasions, and that there
    was certainly hostility there. . . .
8                     UNITED STATES v. HOLBROOK
    I find that she did have malice in a legal sense, and that her
    shooting of her husband was not based on any sudden pas-
    sion or rage sufficient to negate malice and make this crime
    voluntary manslaughter.

(J.A. at 892-95.) Applying the second degree murder cross-reference,
the district court sentenced Holbrook to a term of 120 months incar-
ceration as to Count One and a consecutive term of 90 months incar-
ceration as to Count Two.

                                   II.

    Holbrook raises three arguments on appeal. First, Holbrook argues
that the district court deprived her of her constitutional rights when
it interpreted the Agreement to allow the Government to refuse to dis-
miss and proceed to trial on Count Two, while refusing to relieve her
of the consequences of her performance — i.e., her plea of guilty to
Count One. Second, Holbrook argues that the second trial on Count
Two violated the Double Jeopardy Clause of the Constitution because
a jury previously had been empaneled and heard evidence on that
count. Third, Holbrook asserts that the district court erred in finding
at sentencing that she acted with malice in killing Larry Holbrook.
We address each argument in turn.

                                   A.

   The interpretation of the terms of a plea agreement is a question of
law that we review de novo. United States v. Snow, 

, 189
(4th Cir. 2000). We construe plea agreements in accordance with
principles of contract law so that each party receives the benefit of its
bargain. United States v. Ringling, 

, 506 (4th Cir. 1993).
Under "ordinary principles of contract law," we enforce a contract’s
"plain language in its ordinary sense." See Bynum v. Cigna Health-
care of North Carolina, Inc., 

, 313 (4th Cir. 2002) (inter-
nal quotation marks omitted). "[C]ourts do not write the contracts of
parties retroactively, but merely construe the terms of the contract the
parties have previously signed." United States v. Race, 

,
1119 (4th Cir. 1980). "Because a defendant’s fundamental and consti-
tutional rights are implicated when [s]he is induced to plead guilty by
reason of a plea agreement," however, we must analyze a plea agree-
                     UNITED STATES v. HOLBROOK                        9
ment "with greater scrutiny" than would apply to a commercial con-
tract. United States v. McQueen, 

, 66 (4th Cir. 1997). This
heightened scrutiny is necessary because "a defendant’s plea of guilty
can truly be said to be voluntary only when ‘the bargain represented
by the plea agreement is not frustrated.’" United States v. Peglera, 

, 413-14 (4th Cir. 1994) (quoting United States v. Jureidini,

, 965-66 (4th Cir. 1988)). Accordingly, we hold "the
Government to a greater degree of responsibility than the defendant
. . . for imprecisions or ambiguities in plea agreements." United States
v. Harvey, 

, 300 (4th Cir. 1986).

   Several terms in the Agreement are relevant to Holbrook’s appeal.
First, in Paragraph I, Holbrook and the Government agreed that the
Government’s duty to dismiss Count Two of the indictment was
expressly conditioned upon Holbrook "meeting the conditions set
forth in paragraph H of this agreement." (J.A. at 313.) In Paragraph
H of the Agreement, Holbrook agreed:

    If I fulfill my obligations under this plea agreement and
    accept responsibility for my conduct, the United States will
    recommend that the Court grant me a reduction in my
    offense level for the appropriate level of acceptance of
    responsibility under the sentencing guidelines.

    However, I hereby agree and stipulate that if I do any of the
    following, I should not receive credit for acceptance of
    responsibility and the United States will be free to make any
    recommendations it wishes at sentencing or to declare a
    breach of this plea agreement and seek the remedies set
    forth in paragraph D: (1) attempt to withdraw my guilty
    plea . . . .

(J.A. at 313 (emphases added).)

   Holbrook concedes that she materially breached the Agreement by
attempting to withdraw her guilty plea as to Count One, but she
argues that the remedy imposed by the district court for this breach
— retaining her guilty plea to Count One and trying her on Count
Two — was authorized neither by the terms of the Agreement nor tra-
ditional principles of contract law, and that as a result, the remedy
10                     UNITED STATES v. HOLBROOK
violated her constitutional due process rights. Specifically, Holbrook
asserts that, under the terms of the Agreement and as a matter of con-
tract law, the only way the Government could try her on Count Two
of the indictment was to declare the entire Agreement void. By allow-
ing the Government to try her on Count Two without first voiding the
Agreement, Holbrook contends, the district court frustrated the bar-
gain as she perceived it — the Government received its principal ben-
efit, her plea of guilty as to Count One, while she was denied her
principal benefit, the dismissal of Count Two. Holbrook, in short,
asks us to determine whether the Agreement permitted the remedy
that the district court enforced.

   By its own terms, the Agreement is comprehensive, and provides
the Government with a broad range of remedies in the event of a
breach by Holbrook. Paragraph D, entitled "Remedies for Breach of
Plea Agreement," identifies this broad range of remedies and provides
in pertinent part as follows:

      I understand that if I breach any provision of this agreement,
      at any time, that the United States Attorney’s office may, at
      its election, pursue any or all of the following remedies: (a)
      declare this plea agreement void and proceed to trial; . . . (g)
      refuse to abide by any other sentencing or other stipulations
      contained in this plea agreement; (h) take any other action
      provided for under this agreement or by statute, regulation
      or court rule. The remedies set forth above are cumulative,
      and not mutually exclusive.

(J.A. at 312 (emphases added).)

   Thus, under Paragraph D, the Government retained the ability to
pursue many different remedies, alone or in combination, in the event
of a breach. Three of those remedies are relevant here. First, Para-
graph D(a) permitted the Government to "declare th[e] plea agree-
ment void and proceed to trial."2 (J.A. at 312.) Paragraph D(a) is the
only remedy that negates the plea of guilty as to Count One, which
  2
   Our colleague in dissent labels this remedy the "Trial Remedy," post
at 17, but as the only remedy that allows the Government to void the
agreement, the label, "Voiding Remedy," is perhaps more apt.
                      UNITED STATES v. HOLBROOK                         11
lies at the very heart of the plea agreement. Should this remedy be
pursued, the parties would be restored to the status quo ante the
Agreement, with Holbrook asserting pleas of not guilty as to both
Count One and Count Two, and the Government preparing to try her
on those counts. By using the phrase "proceed to trial" in Paragraph
D(a), the parties agreed that the Government would not dismiss the
counts, but rather would try Holbrook on those counts. As noted
above, the Government declined to pursue this remedy.

  Although Paragraph D(a) uses the phrase, "proceed to trial," it is
not, as Holbrook contends (and our colleague in dissent agrees3) the
only way in which the Government could "proceed to trial" under the
Agreement.4 The second such mechanism is found in Paragraph D(g),
  3
     Our dissenting colleague suggests that our reading of the Agreement
renders superfluous the phrase, "proceed to trial," in Paragraph D(a). We
disagree. The fact that the Agreement provides alternative avenues for
the Government to try Holbrook on Count Two in the event of her breach
does not negate the fact that, should the Government elect to void the
Agreement under Paragraph D(a), it would then take her to trial.
   4
     Wholly apart from her argument that the terms of the contract require
the Government to void the Agreement in order to try Holbrook on
Count Two, Holbrook asserts that, as a matter of contract law, voiding
the contract and restoration of the status quo ante is the only remedy
available to the injured party when the other party breaches. To the con-
trary, contract law does not prevent an injured party from retaining the
benefit of the contract up to the date of breach, while simultaneously pur-
suing other remedies for the breach. See, e.g., 11 Arthur L. Corbin, Cor-
bin on Contracts § 922 (1979) (in actions for breach of contract, the law
seeks to put the nonbreaching party in the position in which he or she
would have been absent the breach); Johnson v. Oroweat Foods Co., 

, 506 (4th Cir. 1986) (finding that an injured party is able to
realize his or her expectations from the contract as if there had been no
breach). To hold otherwise potentially could create the anomaly of
allowing the breaching party to improve his or her position by reason of
the breach. Accordingly, the Government was not precluded from
enforcing the remaining provisions of the Agreement by virtue of Hol-
brook’s breach while retaining the benefit of Holbrook’s pre-breach per-
formance — i.e., her plea of guilty on Count One. See, e.g., United States
v. Scruggs, 

, 545 (4th Cir. 2004) (holding that, where defen-
dant had breached a plea agreement, Government was allowed to rely on
12                     UNITED STATES v. HOLBROOK
under which the Government could "refuse to abide by any other sen-
tencing or other stipulations contained in this plea agreement," (J.A.
at 312 (emphasis added)), which would include its stipulation that it
would dismiss Count Two.

   Contrary to our colleague’s view, we find that the term, "other stip-
ulations," unambiguously includes all of the Government’s obliga-
tions under the Agreement. We note first that the term, "stipulation,"
is not specifically defined by the terms of the Agreement. Although
the heading of Paragraph J is "STIPULATIONS AND RECOMMEN-
DATIONS," the text of that paragraph deals only with Holbrook’s
promise to assign her interest in Larry Holbrook’s death benefits to
Joshua and Dylan Holbrook. Paragraph J does not address any stipu-
lation by the Government and does not purport to define the entire set
of agreed-upon "stipulations" in the Agreement.

   In its ordinary usage, the word "stipulation" is understood to mean
"an act of stipulating or something stipulated" such as "a condition,
requirement, or item specified in a contract." Webster’s Third New
International Dictionary 2245 (1986). Similarly, in its ordinary legal
usage, the term is understood to mean "[a] material condition or
requirement in an agreement." Black’s Law Dictionary 1427 (7th ed.
1999). The parties use the term "stipulate" throughout the Agreement
in a manner consistent with these definitions. For example, in Para-
graph H, Holbrook stated, "I hereby agree and stipulate that if I do
any of the following I should not receive credit for acceptance of
responsibility and the United States will be free to make any recom-
mendations it wishes at sentencing or to declare a breach of this plea
agreement . . . ." (J.A. at 313.) Similarly, Paragraph K states that
"[t]he parties stipulate that the proper cross-reference for any sentenc-
ing in this case is second degree murder . . . ." (J.A. at 314.) In sum,
when the Agreement is read as a whole, it is clear that the term "stipu-

provision in the plea agreement that allowed it to use statements made
by the defendant in cooperating with the Government pursuant to the
plea agreement). Thus, the Government’s pursuit of trial on Count Two
in this case is not "crawfishing" as our colleague suggests, post at 28, but
rather a permissible act authorized by well-established principles of con-
tract law.
                      UNITED STATES v. HOLBROOK                       13
lation" includes the Government’s conditional obligation in Paragraph
I to dismiss Count Two should Holbrook fulfill her obligations.

   Finally, Paragraph D(h) provided that the Government could "take
any other action provided for under this agreement or by statute, regu-
lation or court rule." (J.A. at 312.) An "other action" contemplated by
the Agreement was the Government’s ability to refuse to dismiss
Count Two, as provided for by Paragraph I. Because, in attempting
to withdraw her guilty plea, Holbrook did not perform her obligations
under paragraph H, the Government’s conditional duty to dismiss
Count Two under Paragraph I never came due. See Restatement (Sec-
ond) of Contracts § 225(2) ("[T]he non-occurrence of a condition dis-
charges the duty when the condition can no longer occur."); 2 E.
Allan Farnsworth, Farnsworth on Contracts § 8.3 (2d ed. 1998)
(same).

   Our dissenting colleague appears to agree that one of the Govern-
ment’s remedies in the event of a breach would be to refuse to dismiss
Count Two, but he does not concede that, in such an event, a trial on
Count Two is permitted. See, e.g., post at 25 ("While a breach by Hol-
brook could support a decision by the United States Attorney not to
dismiss Count Two, the Dismissal Clause neither addresses the issue
of trial nor authorizes the Government to proceed to trial."). While the
dismissal clause in Paragraph I does not include the words, "proceed
to trial," Paragraph D(h), as noted above, allowed that the Govern-
ment, at its election, could "take any other action provided for . . . by
statute, regulation or court rule," and could do so cumulative to any
other remedy. The trial of a criminal defendant on pending charges
is an act unquestionably authorized by "statute, regulation or court
rule." See, e.g., 18 U.S.C.A. §§ 3161-74 (West 2000 & Supp. 2003)
(The Speedy Trial Act). Thus, the plain language of the Agreement
permitted for the Government to try Holbrook on Count Two after
refusing to dismiss it.5
  5
   We note further that, if the Government chose not to dismiss Count
Two, but was precluded from proceeding to trial on Count Two, then
Count Two, absent intervening circumstances, would be left in limbo,
neither dismissed nor prosecuted. This result would violate the Speedy
Trial Act, 18 U.S.C.A. §§ 3161-74 (West 2000 & Supp. 2003), which
14                     UNITED STATES v. HOLBROOK
   Accordingly, under the broad, plain language of the Agreement,
negotiated with the advice of counsel, reviewed and approved by the
district court at Holbrook’s Rule 11 plea colloquy, the Government
retained the ability "at its election, [to] pursue any or all" of the listed
remedies and explicitly provided that "[t]he remedies . . . [we]re
cumulative, and not mutually exclusive." Thus, Holbrook’s subse-
quent trial on Count Two was consistent with the plain language of
the Agreement and thus was consistent with constitutional due pro-
cess requirements. The Agreement unquestionably is favorable to the
Government. Nevertheless, its unambiguous terms represent the bar-
gain that Holbrook struck — a bargain that she struck, notably, on the
advice of counsel, only after hearing the Government present to a jury
its case as to both counts, and after the district court ruled that she
could not present a justification defense. Holbrook sought to with-
draw her guilty plea upon the advice of counsel, and did so despite
a prompt and express warning from the Government that it would
hold her to the terms of the Agreement and try her on Count Two
while maintaining her guilty plea on Count One. Although our prece-
dent requires us to hold the Government accountable for ambiguities
in written plea agreements, it does not require us to create such
ambiguities where there are none.6

requires the Government to try a defendant on any open counts within
a certain period of time. Because we interpret contracts in light of the law
existing at the time of execution, 11 Samuel Williston & Richard A.
Lord, A Treatise on the Law of Contracts § 32:7 (4th ed. 1999) (explain-
ing that "the circumstances surrounding the execution of the contract
bear upon the contract’s meaning"); 2 E. Allan Farnsworth, Farnsworth
on Contracts § 7.10 (2d ed. 1998) (explaining that "[t]he overarching
principle of contract interpretation is that the court is free to look to all
the relevant circumstances surrounding the transaction[,] [including] the
state of the law . . . at the time [of execution]"), the necessary conse-
quence of the elimination of the Government’s duty to dismiss Count
Two was a trial on that count.
   6
     Contrary to our colleague’s suggestion, see post at 27-28, our reading
of the Agreement is fully consistent with our holding in United States v.
Smith, 

(4th Cir. 1992). In Smith, we reversed the district
court because it misapplied Restatement (Second) of Contracts § 212 in
construing an unambiguous provision in an immunity agreement. 

STATES v. HOLBROOK                         15
                                    B.

   In her second argument on appeal, Holbrook asserts that the district
court erred in failing to dismiss Count Two on the ground that it vio-
lated the Double Jeopardy Clause of the Constitution. We review
questions of double jeopardy de novo. United States v. Studifin, 

, 418 (4th Cir. 2001).

   "The Double Jeopardy Clause forbids a second trial for the purpose
of affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding." Burks v. United
States, 

, 11 (1978). But, when the initial jeopardy termi-
nates at the defendant’s behest, or on a basis unrelated to the suffi-
ciency of the evidence of the defendant’s guilt, the Double Jeopardy
Clause generally imposes no barrier to retrial. See United States v.
Borromeo, 

, 247 (4th Cir. 1992) (citing United States v.
Tateo, 

(1964)) ("[T]he government is not barred from
retrying cases when the first trial ends on the defendant’s motion for
mistrial."); United States v. Alvarez, 

, 129-30 (4th Cir.
2003) (holding that where district court entered an order labeled
"Judgment of Acquittal" that was based on matters unrelated to the
sufficiency of the evidence against the accused, Double Jeopardy
Clause did not bar re-trial); cf. Oregon v. Kennedy, 

, 676
(1982) ("Only where the governmental conduct in question is
intended to ‘goad’ the defendant into moving for a mistrial may a
defendant raise the bar of double jeopardy to a second trial after hav-
ing succeeded and aborting the first on his own motion.").

   In this case, Holbrook’s first jury trial ended at her behest, without
any "goading" by the Government, when she decided to enter a plea
of guilty after the district court ruled that she could not put on a justi-

864. Because the parties in that case did not mean for the provision in
question to have an agreed upon meaning that was different from that
which was facially suggested, the district court erred in not reverting to
the unambiguous text. 

As explained above, the Agreement
here unambiguously allowed the Government to retry Holbrook on
Count Two without voiding the Agreement. Thus, our holding today
does not implicate the holding in Smith at all.
16                   UNITED STATES v. HOLBROOK
fication defense. Holbrook has not suggested, either below or on
appeal, that the evidence against her was anything less than sufficient
to support a conviction. To the contrary, Holbrook stipulated in the
Agreement that there was "a sufficient factual basis to support each
and every material factual allegation contained within" the indict-
ment. (J.A. at 315.) In short, the Government’s re-trial of Holbrook
on Count Two is "scarcely a picture of an all-powerful state relent-
lessly pursuing a defendant who had either been found not guilty or
who had at least insisted on having the issue of guilt submitted to the
first trier of fact." United States v. Scott, 

, 96 (1978).
Accordingly, because Holbrook herself terminated the first trial and
has made no allegation that this termination was the result of any gov-
ernmental misconduct, we reject Holbrook’s double jeopardy chal-
lenge and affirm the district court’s denial of Holbrook’s motion to
dismiss Count Two.

                                  C.

   In her third, and final, argument on appeal, Holbrook asserts that
the district court, in calculating the sentence for her conviction on
Count One, erred in finding that she acted with malice in killing Larry
Holbrook. We review a district court’s factual determinations made
in connection with sentencing for clear error and its legal interpreta-
tion of the Sentencing Guidelines de novo. United States v. Dawkins,

, 714 (4th Cir. 2000).

   Section 2K2.1 of the Guidelines governs Holbrook’s conviction
under Count One, and provides that, where the defendant used a fire-
arm in connection with the commission of another offense in which
death results, the sentencing court must apply "the most analogous
offense guideline from Chapter Two, Part A, Subpart 1 (Homicide),
if the resulting offense level is greater than that determined above."
U.S.S.G. § 2K2.1(c)(1)(B). Because Holbrook’s base offense level on
Count One would have been 14 absent the cross-reference, and the
possible base offense levels under the homicide guidelines were
greater than 14, the district court correctly cross-referenced Hol-
brook’s convictions to the homicide guidelines. The district court
found that Holbrook acted with malice in killing Larry Holbrook and
accordingly applied the second-degree murder guideline, U.S.S.G.
§ 2A1.2.
                     UNITED STATES v. HOLBROOK                       17
   We see no error, clear or otherwise, in the district court’s finding
that Holbrook acted with malice. As the district court accurately
explained at sentencing, the evidence showed quite convincingly Hol-
brook’s malice in committing this crime: she had apparent motive;
she doggedly sought to acquire a functioning weapon in the weeks
prior to the shooting; she attempted to make the shooting look like a
suicide by moving the victim’s body and wiping the weapon clean of
her fingerprints; and she repeatedly changed her story about what
happened on the date of the shooting. Given this evidence, the district
court was more than justified in finding that Holbrook acted with mal-
ice.

                                  III.

  For the foregoing reasons, we affirm the judgment of the district
court.

                                                           AFFIRMED

KING, Circuit Judge, dissenting:

   Because the decision of the panel majority disregards precedent
and will undermine the fair administration of justice in this Circuit,
I write separately to explain my profound disagreement. Paragraph
D(a) of the Plea Agreement provides, in plain terms, that in the event
of a breach by Holbrook, the United States Attorney’s office may "de-
clare this Agreement void and proceed to trial" (the "Trial Remedy").
Although the Trial Remedy is clear and unambiguous, the majority
has avoided its application altogether. The majority opinion has
thereby failed to apply controlling precedent, and its decision thus
stems from an erroneous approach to the issue of whether the Govern-
ment adhered to its obligations. More specifically, the majority (1)
fails to observe the elementary principles applicable to the interpreta-
tion of plea agreements; (2) construes the Agreement in favor of the
Government; and (3) rewrites the Agreement to justify the Govern-
ment’s actions.

  Before turning to a detailed explanation of the deficiencies in the
majority opinion, I take the opportunity to provide a brief overview
18                     UNITED STATES v. HOLBROOK
of the majority’s problem. As aptly observed by John Adams during
his defense of British soldiers charged with the Boston Massacre,
"[f]acts are stubborn things; and whatever may be our wishes, our
inclinations, or the dictates of our passions," they cannot be altered.
J. Bartlett, Bartlett’s Familiar Quotations 462b (14th ed. 1968). And
the relevant facts of this appeal — the terms of the Agreement written
by the Government — entirely undermine the ruling of the majority.
Without revising the terms of the Agreement, the theories of the
majority do not withstand scrutiny. As has been true throughout his-
tory, it is simply impossible — regardless of the effort expended —
to construct a "silk purse from a sow’s ear."

  As explained more fully below, I would reverse the district court
and remand for further proceedings.

                                     I.

                                    A.

   During the initial trial on her two-count Indictment on firearms
charges, Holbrook and the Government entered into the Agreement of
August 23, 2001.1 Pursuant thereto, they agreed, inter alia, that Hol-
brook would plead guilty to Count One, that the Government would
dismiss Count Two, and that the Government would recommend that
Holbrook receive credit for acceptance of responsibility. With respect
to a breach by Holbrook, the Agreement’s Paragraph D (the "Reme-
dies Clause") provides, in pertinent part:

         I [Holbrook] understand that if I breach any provision of
      this agreement, at any time, that the United States Attor-
      ney’s office may, at its election, pursue any or all of the fol-
      lowing remedies: (a) declare this plea agreement void and
      proceed to trial; (b) refuse to recommend . . . acceptance of
      responsibility; (c) seek an upward departure from the guide-
      lines range, or seek imposition of a sentence at the high end
  1
   The nature of the underlying offenses and their factual underpinnings,
spelled out with some specificity in the majority opinion, see ante pp. 3-
4, are irrelevant to whether the Government breached its obligations
under the Agreement.
                     UNITED STATES v. HOLBROOK                        19
    of the guidelines range; (d) terminate my opportunity to per-
    form substantial assistance . . . ; (e) refuse to make a sub-
    stantial assistance motion . . . ; (f) withdraw any substantial
    assistance motion made . . . ; (g) refuse to abide by any other
    sentencing or other stipulations contained in this plea agree-
    ment; (h) take any other action provided for under this
    agreement or by statute, regulation or court rule.

Agreement ¶ D. The Government’s right to utilize the Remedies
Clause is triggered by a breach of the Agreement by Holbrook, as
explained in Paragraph H (the "Breach Clause"). More specifically, if
Holbrook breached the Agreement by seeking to withdraw her guilty
plea on Count One, the Government, pursuant to the Breach Clause,
could utilize the remedies set forth in the Remedies Clause. The
Breach Clause provides, in pertinent part:

       I [Holbrook] hereby agree and stipulate that if I do any of
    the following, I should not receive credit for acceptance of
    responsibility and the United States will be free to make any
    recommendations it wishes at sentencing or to declare a
    breach of this plea agreement and seek the remedies set
    forth in paragraph D: (1) attempt to withdraw my guilty
    plea . . . .

Agreement ¶ H (emphasis added). Pursuant to the Remedies Clause,
if the Government, in response to a breach by Holbrook, desired to
proceed to trial, it could do so by invoking the Trial Remedy, i.e., by
"declar[ing] this plea agreement void and proceed[ing] to trial."

   On November 5, 2001, Holbrook sought to withdraw her guilty
plea, in contravention of the Breach Clause. In so doing, she asserted
that she was not mentally competent when she entered her plea, that
she was then acting under duress, and that she possessed a valid
defense to the charges. On November 7, 2001, the United States
Attorney informed Holbrook that she was considered to be "in breach
of the plea agreement." And due to this breach, the Government
asserted that it would not move to dismiss Count Two and would
instead try her on that charge. Notwithstanding the Trial Remedy, the
Government asserted that it "tak[es] these actions under the plea
20                    UNITED STATES v. HOLBROOK
agreement and does not renounce the plea agreement or declare it
void."

   On November 8, 2001, and again six months later on May 9, 2002,
the district court heard evidence on Holbrook’s motion. The court
then denied her motion and scheduled sentencing on Count One. The
United States Attorney sought a continuance of her sentencing to per-
mit him to "withdraw [the Government’s] promise to dismiss" Count
Two, to try her on that charge and, assuming her conviction, to have
her sentenced in a single proceeding. Holbrook objected, asserting,
inter alia, that the Trial Remedy did not authorize the Government to
proceed to trial unless the United States Attorney first voided the Agree-
ment.2 And if the Agreement were declared void, Holbrook’s guilty
plea and conviction on Count One would thereby be vacated. The
court disagreed with Holbrook’s position and, on June 25, 2002,
authorized the Government to proceed to trial on Count Two only,
without vacating her conviction on Count One. See United States v.
Holbrook, 

, 473 (W.D. Va. 2002).

   The district court found that Holbrook’s effort to withdraw her plea
contravened the Breach Clause, and it concluded that the United
States Attorney was required to seek a remedy under the Remedies
Clause. 

Recognizing that the Trial Remedy mandated the
United States Attorney to void the Agreement in order to proceed to
trial, the court premised its ruling on the Agreement’s Paragraph D(g)
  2
   Holbrook’s objection to trial was based primarily on her contention
that her unsuccessful attempt to withdraw the guilty plea did not consti-
tute a material breach. The materiality issue is not raised in this appeal,
however, and thus is not subject to review in this proceeding. See United
States v. Brower, 

, 277 n.2 (4th Cir. 2003) (explaining that
issues not raised in parties’ briefs are generally waived). I have reserva-
tions, however, on whether an unsuccessful effort to withdraw a plea
could constitute a material breach. A material breach is one going to the
root or essence of the agreement or "a failure to do something that is so
fundamental to a contract that the failure to perform that obligation
defeats the essential purpose of the contract . . . .’" 23 Samuel Williston
& Richard A. Lord, A Treatise on the Law of Contracts § 63:3 (4th ed.
1999). Notwithstanding Holbrook’s unsuccessful attempt to withdraw
her plea to Count One, the essential purpose of the Agreement remained
intact.
                       UNITED STATES v. HOLBROOK                         21
(the "Catchall Remedy"). Pursuant thereto, the Government, in the
event of a breach, is entitled to "refuse to abide by any other sentenc-
ing or other stipulations contained in this plea agreement . . . ."
According to the court, Paragraph I of the Agreement (entitled "Dis-
missal of Charges"), by which the United States Attorney agreed to
dismiss Count Two of the Indictment (the "Dismissal Clause"), con-
stitutes a "stipulation" under the Catchall Remedy.3 

rea-
soned that, because the United States Attorney was not obligated to
comply with the Dismissal Clause, he could proceed to trial on Count
Two alone. 

26, 2002, after a three-day trial, Holbrook was convicted
on Count Two. She was then sentenced to 120 months in prison on
Count One and to a consecutive term of ninety months on Count Two.
This appeal followed.

                                    B.

   As both the panel majority and the Government recognize, we
apply basic contract principles to the interpretation of a plea agree-
ment. United States v. McQueen, 

, 66 (4th Cir. 1997)
(analyzing government’s breach of oral plea agreement under contract
law); United States v. Ringling, 

, 506 (4th Cir. 1993)
(analyzing plea agreement according to material breach principle of
contract law). Certain of these elementary principles are applicable to
this dispute. First, as the Government concedes, a contract must be
construed according to the plain meaning of its terms. 11 Samuel Wil-
liston & Richard A. Lord, A Treatise on the Law of Contracts § 32:3
(4th ed. 1999). Second, we must read each provision of a plea agree-
ment as part of the whole, such that no word, phrase, or term is ren-
dered superfluous. 

Importantly, "[a]n interpretation which
gives effect to all provisions of the contract is preferred to one which
renders a portion of the writing superfluous, useless or inexplicable."
Id.; see United States v. Brye, 

, 1211 (10th Cir. 1998)
(applying rule to plea agreements). And finally, when there is a con-
  3
   The district court failed to recognize or address the fact that Paragraph
J of the Agreement, entitled "Stipulations and Recommendations" (the
"Stipulations Clause") is the only paragraph of the Agreement designated
as containing "Stipulations." See infra note 7.
22                   UNITED STATES v. HOLBROOK
flict between general and specific provisions of a contract, the spe-
cific clause controls its meaning. 11 Williston & Lord § 32:10; cf.
Allen v. Thomas, 

, 672 (11th Cir. 1998) (finding general
language insufficient to waive specific rights).

   Because a defendant’s underlying "contract" right is constitution-
ally based, however, our interpretation of a plea agreement is in many
respects unique. As a result, and as Judge Phillips properly recognized
several years ago, judicial review of a plea agreement must reflect
"concerns that differ fundamentally from and run wider than those of
commercial contract law." United States v. Harvey, 

, 300
(4th Cir. 1986) (concluding that government’s breach of plea agree-
ment implicated due process concerns by impairing voluntary and
intelligent nature of plea); see also 

(explain-
ing that "defendant’s fundamental and constitutional rights hang in
the balance" with respect to plea agreements); 

(same); United States v. Smith, 

(4th Cir. 1992)
(applying same principle to immunity agreements). And "when a plea
rests in any significant degree on a promise or agreement of the prose-
cutor, so that it can be said to be part of the inducement or consider-
ation, such promise must be fulfilled." Santobello v. New York, 

, 262 (1971). It is vitally important that, in criminal proceed-
ings, our concerns "run even wider than protection of the defendant’s
individual constitutional rights — to concerns for the ‘honor of the
government, public confidence in the fair administration of justice,
and the effective administration of justice in a federal scheme of gov-
ernment.’" 

(quoting United States v. Carter,

, 428 (4th Cir. 1972)). Accordingly, in plea agreement
matters, the Government is obliged to conform its actions to a higher
standard than we expect from a typical contracting party, and we are
obliged to construe any ambiguities and inconsistencies in a plea
agreement against the Government. See, e.g., 

(suggesting that plea agreements should be in writing because, in
the words of Judge Russell, "the government bears a greater responsi-
bility than the defendant for inaccuracies and ambiguities in a plea
agreement"). The Government’s greater responsibility is magnified
when, as here, it has written the Agreement. 

.
                      UNITED STATES v. HOLBROOK                       23
                                   II.

   The plea agreement process is an essential and carefully-structured
component of our criminal justice system. Because the vast majority
of defendants plead guilty, the "fairness and adequacy of the proce-
dures on acceptance of pleas of guilty are of vital importance in
according equal justice to all in federal courts." Fed. R. Crim. P. 11
advisory committee’s note. Unfortunately, the majority’s decision of
today poses a distinct threat to this fundamental concept. In its opin-
ion, the majority has (1) failed to adhere to the plain meaning appar-
ent within the whole of the Agreement; (2) construed the Agreement
against Holbrook; and (3) rewritten the Agreement.4

                                   A.

   In order to uphold the Government’s actions, the majority has
found it necessary to disregard the principles of interpretation that we
are obliged to apply in plea agreement disputes. First of all, we must
construe a plea agreement according to the plain meaning of its terms.
11 Williston & Lord § 32:3 (explaining principle). And the pertinent
provisions of this Agreement could not be more plain. Second, we
must read the Agreement as a whole, such that no word, phrase, or
term is rendered superfluous. 

(explaining principle); see

(applying principle to plea agreements). In
order to justify its position, the majority ignores this principle alto-
gether, disregarding the controlling provision of the Agreement, i.e.,
the Trial Remedy. As explained below, a proper application of these
elementary principles mandates a reversal of the district court.

                                   1.

  We begin our analysis, as we must, with an examination of the
Agreement’s terms. The Breach Clause provides, inter alia, that if
Holbrook "attempt[s] to withdraw [her] guilty plea," the Government
  4
    The majority’s construction of the Agreement, which ignores the
Government’s obligation to Holbrook under the Trial Remedy, recalls
Shakespeare’s cynical observation that "[o]ft expectation fails, and most
oft there / where most it promises." William Shakespeare, All’s Well that
Ends Well, Act II, Sc. 1.
24                    UNITED STATES v. HOLBROOK
may (1) "declare a breach of the plea agreement," and then (2) "seek
the remedies set forth in Paragraph D [the Remedies Clause]." Agree-
ment ¶ H. Under the Remedies Clause, there is only one remedy —
the Trial Remedy — authorizing the Government to proceed to trial.
And under the Trial Remedy, the Government can proceed to trial
only upon voiding the Agreement.

   The majority has decided that it can ignore the Trial Remedy, and
it instead relies on two alternative theories in concluding that the
Government could proceed to trial without voiding the Agreement.
First, the majority contends that the Government could proceed under
the Catchall Remedy, which authorizes the United States Attorney,
inter alia, to refuse to abide by any stipulations in the Agreement. See
ante pp. 11-12. Under this theory, the Dismissal Clause constitutes a
"stipulation" under the Catchall Remedy, and the Government was no
longer required to dismiss Count Two. Alternatively, the majority
relies on Paragraph D(h) of the Remedies Clause, which provides that
the Government may "take any other action provided for under this
agreement or by statute, regulations or court rule." See ante p. 13.
According to the majority, the Government’s obligation under the
Dismissal Clause constitutes an "other action provided for under this
agreement," and Holbrook’s breach releases the Government from its
obligation to dismiss Count Two.5 Under either theory, however, the
result reached by the majority is premised on the Dismissal Clause,
which says exactly nothing about proceeding to trial. The majority’s
rationale thus rests on its implication that, when a criminal charge is
pending, the Government must necessarily and always proceed to trial.6
  5
     The majority’s alternative theory that Paragraph D(h) supports the
Government’s actions is entirely new — neither the district court nor the
Government raised it.
   6
     The majority’s suggestion that the Speedy Trial Act, 18 U.S.C.
§§ 3161-74, somehow authorized the Government to act as it did is base-
less. See ante p. 13 & note 5. The Act does not prohibit the Government
from entering into an agreement restricting its right to proceed to trial,
nor does it authorize the Government to breach its agreements. Instead,
the Act simply requires that an indictment be dismissed, upon a defen-
dant’s motion, if the defendant is not brought to trial within the relevant
time limit. See 18 U.S.C. § 3162(a)(2).
                      UNITED STATES v. HOLBROOK                        25
   While a breach by Holbrook might support a decision by the
United States Attorney not to dismiss Count Two, the Dismissal
Clause neither addresses the issue of trial nor authorizes the Govern-
ment to proceed to trial. Thus, the majority’s implication that the Dis-
missal Clause authorizes a trial on Count Two is unwarranted, and it
is inconsistent with the specific terms of the Trial Remedy. In any
event, if the Government had wanted to reserve the right to proceed
to trial under the Dismissal Clause, it would have negotiated for such
a provision and written the necessary words "proceed to trial" in that
Clause. It chose not to do so, and it is bound by that choice.

   Put simply, the decision of the panel majority contravenes the prin-
ciple that the plain meaning of the Agreement must control. The only
provision of the Agreement authorizing the Government to proceed
to trial is the Trial Remedy. And the Trial Remedy is written in the
conjunctive ("declare this plea agreement void and proceed to trial"),
requiring the United States Attorney to void the Agreement in order
to proceed to trial. In these circumstances, the majority decision has
contravened the plain meaning principle.

                                    2.

   By its opinion, the panel majority has also contravened the basic
rule that a contract must be read as a whole, such that no clause is ren-
dered meaningless or superfluous. See 11 Williston & Lord § 32:5
(explaining principle); 

(applying principle to
plea agreements). In deciding that the Dismissal Clause authorizes the
United States Attorney to proceed to trial, the majority has rendered
the Trial Remedy meaningless and superfluous. Why would any pros-
ecutor utilize the Trial Remedy and void the Agreement if he could
"have his cake and eat it too," by proceeding to trial under the Dis-
missal Clause without giving up his conviction on Count One?7 The
answer is obvious — absent a lapse of competence, he would not.
  7
   In addition to rendering the Trial Remedy superfluous, the majority’s
reasoning renders the heading of the Stipulations Clause superfluous.
The Catchall Remedy, relied on by the majority, authorizes the United
States Attorney, inter alia, to refuse to abide by any stipulations in the
Agreement. The Stipulations Clause is found under the heading "J. Stipu-
26                    UNITED STATES v. HOLBROOK
   And if the Agreement is construed as containing superfluous provi-
sions, the Trial Remedy is not the provision to be rendered meaning-
less. In the event of a conflict between general and specific clauses
of a contract, the specific clause controls and governs the contract’s
meaning. 11 Williston & Lord § 32:10 (explaining this principle); see

(applying this principle to plea agreements).
The Trial Remedy specifically authorizes the United States Attorney
to proceed to trial, whereas the Dismissal Clause simply refers to the
Breach Clause, failing to discuss or describe any process for proceed-
ing to trial. As such, the Trial Remedy, as the specific provision relat-
ing to a trial, governs the more general provisions of the Agreement,
and the Government was obligated to proceed under the Trial Rem-
edy. The failure and refusal of the United States Attorney to do so
constitutes a breach of the Agreement by the Government.

                                    B.

   As we made clear in Harvey, "both constitutional and supervisory
concerns require holding the Government to a greater degree of
responsibility than the defendant . . . for imprecisions or ambiguities
in plea agreements." 

. This principle flows not
only from the fact that the Government typically writes the plea
agreement, but also from the fact that such agreements involve the
"‘honor of the government, public confidence in the fair administra-
tion of justice, and the effective administration of justice in a federal
scheme of government.’" 

454 F.2d at 428). While
the controlling provision of the Agreement is clear — i.e., the Gov-
ernment can, pursuant to the Trial Remedy, proceed to trial only if it
first voids the Agreement — we would be obliged to resolve any
ambiguities or inconsistencies in Holbrook’s favor. See 

lations and Recommendations." And under applicable principles of law,
the headings of a contract must be given their meaning, unless the con-
tract specifically manifests a contrary intent. 11 Williston & Lord § 32:5.
This Agreement does not manifest a contrary intent, and the Stipulations
Clause thus contains the Agreement’s stipulations. The majority’s char-
acterization of the Dismissal Clause as a stipulation, when the Agree-
ment otherwise contains a clause entitled "Stipulations and
Recommendations," is simply wrong.
                      UNITED STATES v. HOLBROOK                       27
majority, however, fails to do so. Indeed, disregarding this principle
and our precedent, it does just the opposite.

   Of importance, the relevant language of the Agreement is clear:
only one aspect thereof — the Trial Remedy — authorizes the Gov-
ernment to proceed to trial. Under its terms, the Government can, in
the event of a breach, proceed to trial only if it first voids the Agree-
ment (thereby vacating Holbrook’s guilty plea and conviction on
Count One, and permitting a trial on both charges). In ruling other-
wise, the majority finds in the Dismissal Clause an implied authoriza-
tion for the United States Attorney to proceed to trial without voiding
the Agreement. This conclusion relies on the flawed logic that the
right not to dismiss Count Two necessarily implies the right to pro-
ceed to trial thereon. Even if the Dismissal Clause is ambiguous, such
an ambiguity must be construed against the Government, as the
drafter thereof. The majority’s failure to adhere to this principle com-
pounds its erroneous ruling.

                                   C.

   Finally, my colleagues of the panel majority have improperly
rewritten the Agreement for the benefit of the Government. At oral
argument, the Government conceded that the Agreement would have
been "clearer" if the prosecutor had simply added the words "proceed
to trial" to the Dismissal Clause. In hindsight, according to the prose-
cutor, he wished he had done so. The majority, contrary to precedent,
does the Government’s work by adding this phrase, and other more
expansive language, to the Agreement. In Smith, this Court addressed
an agreement, executed by the Government, containing the following
clause: "‘[T]he United States will not prosecute of [sic] Mr. Smith for
any federal offense based on information now in the possession of the
government.’" 

. In order to save the Govern-
ment from its poorly-drafted agreement, the district court effectively
rewrote that clause by adding the following language: "‘insofar as it
would have indicated the commission of a crime on the part of the
defendant.’" 

We reversed, explaining that the judiciary
cannot rewrite an agreement simply because the Government made a
mistake, or because it regrets what it has written and agreed to. See

Indeed, neither we nor any other court has ever counte-
28                    UNITED STATES v. HOLBROOK
nanced a judicial rewriting of an agreement for the Government’s
benefit.

   The Dismissal Clause, in order to be utilized in support of the
majority’s ruling, has effectively been rewritten to add specific terms,
which supercede and render for naught the Trial Remedy. As applied
by the panel majority, the Dismissal Clause, which provides only that
"[u]pon meeting the conditions set forth in paragraph H [the Breach
Clause] of this agreement, the United States will move to dismiss
Count Two of the Indictment," now reads as follows (with language
necessarily implied by the majority reflected in italics):

     Upon meeting the conditions set forth in paragraph H [the
     Breach Clause] of this agreement, the United States will
     move to dismiss Count Two of the Indictment. In the event
     of a breach by Holbrook, however, and notwithstanding the
     contrary provisions of Paragraph D(a) [the Trial Remedy],
     the United States Attorney may, in his discretion, proceed to
     trial on Count Two without declaring this plea agreement
     void. And the parties further agree that the provisions of this
     Paragraph I [the Dismissal Clause] shall supercede and
     render for naught the contrary provisions of Paragraph
     D(a) [the Trial Remedy].

In rewriting the Dismissal Clause, the majority has authorized the
Government to crawfish on the terms of the Agreement it prepared
and executed. Our controlling precedent, as explained by Judge
Murnaghan in Smith, simply does not authorize such an activity.

   In order for our criminal justice system to function fairly and effi-
ciently, the Government must abide by its commitments, its word
must always be its solemn bond, and any deviations therefrom cannot
be countenanced. Judge Wilkinson’s explanation of this fundamental
principle cannot be improved upon: "[b]ecause a government that
lives up to its commitments is the essence of liberty under law, the
harm generated by allowing the government to forego its plea bargain
obligations is one which cannot be tolerated." United States v. Pegl-
era, 

, 414 (4th Cir. 1994). The panel majority has ignored
this settled principle, in disregard of the terms of the Agreement and
controlling precedent.
                     UNITED STATES v. HOLBROOK                       29
   Pursuant to the foregoing, I must respectfully dissent from the deci-
sion of the panel majority.8
  8
   Because I would remand and direct the Government to adhere to the
Agreement, the other two issues raised in this appeal — relating to dou-
ble jeopardy and sentencing — would be rendered moot.