PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 13-3407
                     _____________

            UNITED STATES OF AMERICA

                            v.

                CHRISTOPHER ERWIN,

                                      Appellant
                      ___________

      On Appeal from the United States District Court
               for the District of New Jersey
                 (No. 3-12-cr-00364-001)
          District Judge: Hon. Freda L. Wolfson

                  Argued: May 20, 2014
                     ____________

     Before: McKEE, Chief Judge, CHAGARES, and
              NYGAARD, Circuit Judges.

                 (Filed: August 26, 2014)
                      ____________

                        OPINION
                      ____________

Jeffrey M. Brandt, Esq. [ARGUED]
Robinson & Brandt
629 Main Street, Suite B
Covington, KY 41011
       Attorney for Appellant
Mark E. Coyne, Esq.
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Norman Gross, Esq. [ARGUED]
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
       Attorneys for Appellee

CHAGARES, Circuit Judge.

       This case presents the novel question of what remedy
is available to the Government when a criminal defendant
who knowingly and voluntarily executed a waiver of right to
appeal — and received valuable promises from the
Government in return — violates his plea agreement by filing
an appeal. Christopher Erwin pleaded guilty to conspiracy to
distribute and possess with intent to distribute oxycodone, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21
U.S.C. § 846. His agreement included a waiver of right to
appeal his sentence if it was within or below the advisory
Sentencing Guidelines range that results from a total advisory
United States Sentencing Guidelines (“U.S.S.G.”) offense
level of 39. The Government agreed not to bring further
criminal charges against Erwin in connection with the
conspiracy, and it also agreed to seek a downward departure
under U.S.S.G. § 5K1.1. The Government fulfilled its part of
the bargain; Erwin, who challenges his within-Guidelines
sentence on appeal, did not.

       For the following reasons, we conclude that Erwin’s
appeal is within the scope of his appellate waiver, to which he
knowingly and voluntarily agreed, and that he has failed to
raise any meritorious grounds for circumventing the waiver.
We further conclude that Erwin breached the plea agreement
by appealing, and that the appropriate remedy for his breach
is specific performance of the agreement’s terms: that is, the
Government will be excused from its obligation to move for a
downward departure. We will therefore vacate Erwin’s


                              2
judgment of sentence and remand for de novo resentencing in
accordance with this opinion.
                              I.

        From approximately January 2009 through December
2010, Erwin managed a large-scale oxycodone distribution
ring (the “Erwin Organization”) that operated throughout the
State of New Jersey and elsewhere.                The Erwin
Organization’s modus operandi was to obtain medically
unnecessary prescriptions for oxycodone from licensed
physicians Hassan Lahham and Jacqueline Lopresti, in
Erwin’s name and others’ names, in exchange for cash.
Erwin’s customers, posing as patients, filled the prescriptions
at various pharmacies in New Jersey and New York. The
conspiracy yielded hundreds of thousands of oxycodone
tablets, which were illegally sold on the black market.

       On May 9, 2011, the Government filed a sealed
criminal complaint against Erwin, Lahham, Lopresti, and
nineteen others in the United States District Court for the
District of New Jersey. The complaint charged each
defendant with conspiracy to distribute and possess with
intent to distribute oxycodone, a Schedule II controlled
substance. On May 8, 2012, Erwin executed a written plea
agreement with the Government in which he agreed to plead
guilty to a one-count information charging him with the
above-referenced conspiracy that would later be filed in the
District Court.1 The Government, in turn, agreed not to bring
further criminal charges against Erwin in connection with the
conspiracy.

       Schedule A of the plea agreement set forth, inter alia,
several stipulations addressing Erwin’s offense level under
the advisory Sentencing Guidelines: (1) based on the quantity
of oxycodone for which Erwin was responsible (6,912
grams), his base offense level was 38, see U.S.S.G. §
2D1.1(c)(1); (2) Erwin was subject to a four-level
enhancement for his leadership role in the conspiracy, see 

information was filed on May 24, 2012. Erwin waived
his right to indictment and entered his guilty plea that day.
The information was later superseded to add a forfeiture
count; Erwin consented in writing to being sentenced thereon.
                              3
§ 3B1.1(a); and (3) Erwin qualified for a three-level
downward adjustment for acceptance of responsibility, see 

In accordance with the above, the parties agreed that
the total Guidelines offense level applicable to Erwin was 39.
The parties further agreed that “a sentence within the
Guidelines range that results from the agreed total Guidelines
offense level is reasonable.” Appendix (“App.”) 15 ¶ 7.

      Paragraph 8 of Schedule A contained the following
waiver of right to appeal:

      Christopher Erwin knows that he has and,
      except as noted below in this paragraph,
      voluntarily waives, the right to file any appeal, .
      . . including but not limited to an appeal under
      18 U.S.C. § 3742 . . . , which challenges the
      sentence imposed by the sentencing court if that
      sentence falls within or below the Guidelines
      range that results from a total Guidelines
      offense level of 39. This Office [the United
      States Attorney for the District of New Jersey]
      will not file any appeal, motion[,] or writ which
      challenges the sentence imposed by the
      sentencing court if that sentence falls within or
      above the Guidelines range that results from a
      total Guidelines offense level of 39. The parties
      reserve any right they may have under 18
      U.S.C. § 3742 to appeal the sentencing court’s
      determination of the criminal history category.
      The provisions of this paragraph are binding on
      the parties even if the Court employs a
      Guidelines analysis different from that
      stipulated to herein.       Furthermore, if the
      sentencing court accepts a stipulation, both
      parties waive the right to file an appeal . . .
      claiming that the sentencing court erred in
      doing so.

Both parties reserved the right to “oppose or move to
dismiss” any appeal barred by the above paragraph. 

      Erwin also entered into a written cooperation
agreement with the Government. The agreement provided

                              4
that, if the Government determined “in its sole discretion”
that Erwin substantially assisted in the investigation or
criminal prosecution of others, it would ask the court to
depart downward from the Guidelines range pursuant to
U.S.S.G. § 5K1.1. Supplemental Appendix (“Supp. App.”)
47. However, “[s]hould Christopher Erwin . . . violate any
provision of this cooperation agreement or the plea
agreement, . . . this Office will be released from its
obligations under this agreement and the plea agreement,
including any obligation to file [the] motion . . . .” Supp.
App. 48 (emphasis added). “In addition, Christopher Erwin
shall thereafter be subject to prosecution for any federal
criminal violation of which this Office has knowledge . . . .”

and cooperation agreements “together
constitute[d] the full and complete agreement between the
parties.” Supp. App. 46. For the sake of brevity, we will
refer to them collectively as the plea agreement.

       During the next several months, Erwin attended
debriefing sessions at which he was “questioned extensively.”
Supp. App. 53. In particular, he reviewed and explained
documents critical to the Government investigation of the
Erwin Organization, including his records, coconspirators’
medical files, and prescriptions. 

agreed to
testify against Lopresti and Lahham, influencing their
decisions to plead guilty. 

of Erwin’s “important
and timely” assistance, the Government wrote a letter to the
court on July 12, 2013, asking it to depart downward “from
the otherwise applicable” Guidelines range and to consider
Erwin’s cooperation “in mitigation of [his] sentence.” Supp.
App. 54.

       The United States Probation Office’s Presentence
Investigation Report (“PSR”), as revised on July 15, 2013,
mirrored the parties’ stipulations as to Erwin’s offense level
and determined that Erwin’s criminal history category was I.
The PSR noted, however, that Erwin’s advisory Guidelines
“range” was 240 months (20 years) “due to the statutory
maximum.”2 PSR ¶ 187. A sentence of 240 months, for an


2
  Pursuant to U.S.S.G. § 5G1.1(a), “[w]here the statutorily
authorized maximum sentence is less than the minimum of
                              5
offender in criminal history category I, falls within the low
end of the range resulting from offense level 38 and the
middle of the range resulting from offense level 37. See
U.S.S.G. ch. 5, pt. A (Sentencing Table).

       Erwin’s sentencing hearing was held on July 25, 2013.
The District Court agreed with the parties and the PSR that:
(1) Erwin’s base offense level based on the quantity of
oxycodone attributable to him was 38; (2) Erwin was subject
to a four-level enhancement for his leadership role in the
conspiracy; and (3) Erwin qualified for a three-level
downward adjustment for his acceptance of responsibility.
Erwin’s total offense level of 39 and criminal history category
of I yielded an initial Guidelines range of 262 to 327 months
of imprisonment. The court noted that Erwin’s sentence was
“capped at” 240 months “because of the statutory maximum.”
App. 22. Citing its July letter to the court, the Government
then moved for a five-level downward departure pursuant to
U.S.S.G. § 5K1.1. The Government clarified that, to the
extent there “may be some question as to where to start,” it
was requesting a departure from offense level 39 to offense
level 34, as opposed to from the statutory maximum of 240
months. App. 24. Erwin did not object, and the court granted
the Government’s motion. Erwin’s final Guidelines range
was 151 to 188 months of imprisonment. After considering
the factors under 18 U.S.C. § 3553, the court imposed a
within-Guidelines sentence of 188 months, three years of
supervised release, and a $100 special assessment.

       Erwin timely appealed, arguing that the District
Court’s use of offense level 39 as its starting point for the
downward departure was error because, when combined with
criminal history category I, offense level 39 yields an
advisory Guidelines range above the statutory maximum.
The Government did not cross-appeal. It counters, however,
that this Court should vacate and remand for de novo
resentencing where it will seek a “modest increase” in
Erwin’s sentence in light of his breach of the appellate
waiver. Gov’t Br. 34.


the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.”
                              6
                               II.

        The District Court had jurisdiction over the
prosecution of this criminal action pursuant to 18 U.S.C. §
3231. We have jurisdiction over Erwin’s appeal pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because the
Government has invoked the appellate waiver in Erwin’s plea
agreement, however, we will “decline to review the merits of
[his] appeal” if we conclude that: (1) the issues raised fall
within the scope of the appellate waiver; and (2) he
knowingly and voluntarily agreed to the appellate waiver;
unless (3) enforcing the waiver would “work a miscarriage of
justice.” United States v. Grimes, 

, 128–29 (3d
Cir. 2014) (quotation marks omitted). “The validity and
scope of an appellate waiver involves a question of law and
is, therefore, reviewed de novo.” United States v. Wilson,

, 414 (3d Cir. 2013).

        Erwin waived the right to file any appeal challenging
his sentence, including but not limited to an appeal under 18
U.S.C. § 3742, “if that sentence falls within or below the
Guidelines range that results from a total Guidelines offense
level of 39,” with the caveat that both parties reserved the
right to appeal the court’s determination of Erwin’s criminal
history category. App. 15 ¶ 8. Erwin was sentenced to 188
months of imprisonment, which is far below the 262- to 327-
month Guidelines range that results from a total offense level
of 39 and criminal history category of I. It is also below the
240-month statutory maximum. Erwin does not challenge his
criminal history category. His appeal fits squarely within the
scope of the waiver. Moreover, as Erwin acknowledges, see
Erwin Br. 25, the District Court fulfilled its “critical” role of
ensuring that his waiver of appeal was knowing and
voluntary. United States v. Khattak, 

, 563 (3d
Cir. 2001); see Fed. R. Crim. P. 11(b)(1)(N) (requiring that
before accepting a defendant’s guilty plea, the court must
inform the defendant of, and determine that he understands,
“the terms of any plea-agreement provision waiving the right
to appeal or to collaterally attack the sentence”).

       Erwin’s appellate waiver must therefore be enforced
unless we identify the “unusual circumstance” of “an error
amounting to a miscarriage of justice” in his sentence.

                               7


. This determination depends on
factors such as

       [T]he clarity of the error, its gravity, its
       character (e.g., whether it concerns a fact issue,
       a sentencing guideline, or a statutory
       maximum), the impact of the error on the
       defendant, the impact of correcting the error on
       the government, and the extent to which the
       defendant acquiesced in the result.

(first alteration in original) (quotation marks
omitted).

       Erwin contends that enforcement of the waiver would
be manifestly unjust because the District Court applied the
Government’s downward departure motion to an
“inapplicable” Guidelines range, thereby depriving him of the
“benefit of his plea bargain and the full five-level departure
the [D]istrict [C]ourt agreed he deserved.” Erwin Br. 25–26.
Erwin specifically argues that, because the statutory
maximum (240 months) is less than the minimum of the
Guidelines range resulting from offense level 39 and criminal
history category I (262 to 327 months), the court should have
departed downward from 240 months — which, when
combined with his criminal history category, roughly equates
to offense level 38. If the court had departed from offense
level 38 to offense level 33, instead of from 39 to 34, Erwin’s
final Guidelines range would have been 135 to 168 months
instead of 151 to 188 months.

       Erwin raises two constitutional grounds for
circumvention of the appellate waiver and a claim of
procedural error, none of which have merit. Erwin first
argues that the court violated the spirit of Apprendi v. New
Jersey, 

(2000), where the Supreme Court held
that, under the Due Process Clause of the Fifth Amendment
and the notice and jury trial guarantees of the Sixth
Amendment, “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” 

The
statutory maximum for Apprendi purposes is “the maximum

                               8
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
Blakely v. Washington, 

, 303 (2004) (emphasis
omitted). Erwin pleaded guilty to conspiracy to distribute and
possess with intent to distribute an unspecified amount of
oxycodone, a Schedule II controlled substance. Erwin’s
admission that he violated § 841(b)(1)(C) subjected him to a
statutory maximum sentence of 20 years. His 188-month
sentence amounts to less than 16 years and thus did not
violate Apprendi.3

       Erwin’s second constitutional argument is that the
District Court’s failure to depart to offense level 33 deprived
him of his due process right to receive the full benefit of his
bargain with the Government. Under Santobello v. New
York, 

(1971), “when a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.” 

The Government in this case agreed to “move the sentencing
judge,” pursuant to U.S.S.G. § 5K1.1, to depart from the
otherwise applicable Guideline range if it determined in its
sole discretion that Erwin provided substantial assistance.
Supp. App. 47. The agreement cautioned that, “[w]hether the
sentencing judge does in fact impose a sentence below the
otherwise applicable guideline range is a matter committed

3
  To the extent that Erwin challenges the court’s findings
relevant to his initial Guidelines range, we have held that the
constitutional rights to a jury trial and proof beyond a
reasonable doubt “attach[] only when the facts at issue have
the effect of increasing the maximum punishment to which
the defendant is exposed.” United States v. Grier, 

, 565 (3d Cir. 2007) (en banc). Because the advisory
Guidelines do not “alter[] the judge’s final sentencing
authority,” they do not have this effect and an error in their
application consequently does not trigger Apprendi or its
progeny. Id.; see also United States v. Smith, 

,
117 (3d Cir. 2014) (holding that the Supreme Court’s
decision in Alleyne v. United States, 

(2013),
“did not curtail a sentencing court’s ability to find facts
relevant in selecting a sentence within the prescribed statutory
range”).
                               9
solely to the discretion of the sentencing judge.” 

record is devoid of any indication that the Government
promised it would specifically request a five-level downward
departure, much less that the court would apply the departure
to the statutory maximum, Erwin’s due process claim also
fails.

        Erwin’s claim that the court committed procedural
error fares no better.4 “[A] district court should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range.” Gall v. United States, 

, 49
(2007). Even assuming the District Court erred procedurally
when it applied the downward departure to the 262- to 327-
month range instead of to the statutory maximum, see
U.S.S.G. § 5G1.1 & cmt., its arguably erroneous calculation
would be “precisely the kind of ‘garden variety’ claim of
error contemplated by [an] appellate waiver,” United States v.
Castro, 

, 141–42 (3d Cir. 2013) (quotation marks
omitted). See United States v. Corso, 

, 931 (3d
Cir. 2008) (“[A]llow[ing] alleged errors in computing a
defendant’s sentence to render a waiver unlawful would
nullify the waiver based on the very sort of claim it was
intended to waive.” (second alteration in original) (quotation
marks omitted)); see also United States v. Price, 

, 283–84 (3d Cir. 2009) (holding that there was no
miscarriage of justice where the defendant claimed that the
Government abused its discretion by refusing to request a
three-level downward adjustment for acceptance of
responsibility); United States v. Mabry, 

, 243
(3d Cir. 2008) (characterizing the defendant’s challenges to
district court’s sentencing calculation as “insubstantial”
because “[t]hey do not implicate fundamental rights or
constitutional principles”).



4
  We lack jurisdiction to review the extent of a district court’s
downward departure. United States v. Torres, 

,
151–52 (3d Cir. 2001). Erwin’s claim is reviewable because
it is “premised on the theory that the [D]istrict [C]ourt
misapplied the Guidelines.” United States v. Shaw, 

, 222–23 (4th Cir. 2002); see United States v. Langford,

, 212 (3d Cir. 2008).
                               10
        Erwin’s sentence did not exceed the 240-month
maximum sentence prescribed by statute, let alone the higher
advisory Guidelines range of 262 to 327 months. Moreover,
Erwin largely acquiesced in the claimed error by failing to
lodge a contemporaneous objection. 

. We cannot conclude that, under these circumstances,
enforcing Erwin’s waiver would work a miscarriage of
justice. His appeal is therefore barred by the appellate
waiver.

                              III.

       In circumstances where a defendant’s arguments on
appeal are based on a valid appellate waiver, our ordinary
procedure is to enforce the waiver by dismissing the
defendant’s appeal, thereby affirming the defendant’s
sentence. E.g., United States v. Stabile, 

, 248
(3d Cir. 2011). But the Government argues that merely
dismissing Erwin’s appeal and affirming his sentence “would
neither make the Government whole for the costs it has
incurred because of Erwin’s breach nor adequately deter other
cooperating defendants from similar breaches.” Gov’t Br. 16.
Instead, the Government asks the Court to vacate Erwin’s
sentence so that it can pursue the remedies specified in the
breach provision of the plea agreement — that is, the
opportunity to bring additional criminal charges against
Erwin or to withdraw its § 5K1.1 motion. The Government
indicates that, if granted that choice here, it would pursue the
latter option. Gov’t Br. 17, 34. Erwin objects that the
Government’s proposal “would, as a practical matter, end this
Court’s review for miscarriage of justice, as defendants would
be wary to appeal even in the most egregious cases of error.”
Reply Br. 10.

       To address the Government’s argument, we examine
three issues: (1) whether Erwin in fact breached his plea
agreement; (2) if so, whether resentencing in accordance with
the terms of the agreement is an appropriate remedy in this
case; and (3) even if this relief is appropriate, whether the
cross-appeal rule divests this Court of jurisdiction or authority
to grant it.

                               A.

                               11
        “[P]lea agreements, although arising in the criminal
context, are analyzed under contract law standards.” United
States v. Castro, 

, 135 (3d Cir. 2013) (quotation
marks omitted). We have long exercised de novo review over
the question of whether a Government breach has occurred.
United States v. Warren, 

, 187 n.6 (3d Cir. 2011)
(citing United States v. Rivera, 

, 293–94 (3d Cir.
2004)). Because “a plea agreement necessarily works both
ways,” 

(quotation marks omitted), we
more recently held that the same standards apply when
analyzing a claim that a defendant has breached a plea
agreement, United States v. Williams, 

, 424 (3d
Cir. 2007).

        In Williams, the defendant pleaded guilty to a
narcotics offense pursuant to a written plea agreement. 

In the agreement, the parties stipulated as to Williams’s
offense level and further agreed “not to seek or argue for any
upward or downward departure or any upward or downward
adjustment not set forth herein.” 

(quotation marks
omitted). Despite this promise, Williams sought downward
departures under U.S.S.G. § 4A1.3 and Chapter 5, as well as a
downward variance.          

–20.       Rejecting the
Government’s position that Williams’s requests were
foreclosed by the terms of the plea agreement, 

the
district court reduced Williams’s criminal history category
and varied downward from the resulting range, 

The Government appealed, asking this Court to resolve “what
standard should be applied when analyzing a claim that a
defendant has breached a plea agreement.” 

Because “the government would have no meaningful recourse
if it performed its end of the agreement but did not receive the
benefit of its bargain in return,” 

we held that
the same standard of review applies in considering a
defendant’s breach of a plea agreement as in a Government
breach case — that is, “[w]e will review the question whether
a defendant breaches his plea agreement de novo, and will
impose the burden on the government to prove the breach by
a preponderance of the evidence,” 

Further, “we
will analyze the issue whether a defendant has breached a
plea agreement according to the same contract principles that
we would apply in analyzing a government breach . . . .” 

determining whether [Erwin] breached his plea
agreement, we examine the plain meaning of the agreement
itself and construe any ambiguities in the agreement against
the government as drafter.” 

We need not draw
any inferences here, however, because the relevant language
is unambiguous. Paragraph 1 of Schedule A of the plea
agreement provided that the parties “agree[d] to the
stipulations set forth herein,” including those concerning
Erwin’s offense level. App. 14 ¶ 1. The stipulations included
a waiver of Erwin’s right to challenge his sentence, including
via a direct appeal under 18 U.S.C. § 3742, “if that sentence
falls within or below the Guidelines range that results from a
total Guidelines offense level of 39.” App. 15 ¶ 8. Erwin’s
188-month sentence is below the Guidelines range that results
from an offense level of 39 and his undisputed criminal
history category. Despite promising not to appeal from such
sentence, he did precisely that.5 Erwin’s appeal therefore
amounts to a breach6 of the plea agreement.

5
  Erwin contended at oral argument that there was no breach
because he merely waived the right to file an appeal as
opposed to promised not to file an appeal. See, e.g., Oral
Arg. Tr. 4:08–5:23, 7:46–8:25 (3d Cir. May 20, 2014); see
also Erwin Supplemental Br. 1 n.1. Erwin has not proffered
any principled basis for drawing this distinction, and common
sense dictates that there is none. A “waiver” is defined as
“the intentional relinquishment or abandonment of a known
right.” United States v. Olano, 

, 733 (1993)
(quotation marks omitted). A “promise” is similarly defined
as “a person’s assurance that the person will or will not do
something.” Black’s Law Dictionary 1406 (10th ed. 2014).
By waiving his right to appeal, Erwin relinquished that right;
in so doing, he promised not to exercise it.
6
  Erwin does not dispute that, if he breached the agreement by
filing an appeal, such breach was material. Nor could he: the
breach defeated the parties’ bargained-for objective and
deprived the Government of a substantial part of its benefit.
See Pittsburgh Nat’l Bank v. Abdnor, 

, 338 (3d
Cir. 1990); see also Total Containment, Inc. v. Environ
Prods., Inc., 

, 1416–17 (E.D. Pa. 1995)
(holding that the plaintiff’s lawsuit, which was filed despite a
general release in the parties’ settlement agreement,
                              13
                               B.

       “[A] classic rule of contract law[] is that a party should
be prevented from benefitting from its own breach.” Assaf v.
Trinity Med. Ctr., 

, 686 (7th Cir. 2012); see also
United States v. Bernard, 

, 345 (3d Cir. 2004)
(contract law prohibits a defendant from “get[ting] the
benefits of [his] plea bargain, while evading the costs”). This
rule carries particular importance in the criminal context, as a
court’s failure to enforce a plea agreement against a breaching
defendant “would have a corrosive effect on the plea
agreement process” by “render[ing] the concept of a binding
agreement a legal fiction.” 

, 423.
Given that our criminal justice system depends upon the plea
agreement process, that result cannot be countenanced. 

As the Supreme Court explained in Blackledge v.
Allison,

       the guilty plea and the often concomitant plea
       bargain are important components of this
       country’s criminal justice system. Properly
       administered, they can benefit all concerned.
       The defendant avoids extended pretrial
       incarceration and the anxieties and uncertainties
       of a trial; he gains a speedy disposition of his
       case, the chance to acknowledge his guilt, and a
       prompt start in realizing whatever potential
       there may be for rehabilitation. Judges and
       prosecutors conserve vital and scarce resources.
       The public is protected from the risks posed by
       those charged with criminal offenses who are at
       large on bail while awaiting completion of
       criminal proceedings.


“constituted a material breach of the Settlement Agreement”),
aff’d in part, vacated in part on other grounds, 

(Table) (Fed. Cir. 1997); Maslow v. Vanguri, 

,
423 (Md. Ct. Spec. App. 2006) (holding that the appellant’s
appeal of the jury’s verdict was a material breach of the “no
appeals” provision in the parties’ settlement agreement).
7
  Of the 2,920 convictions in the district courts within our
circuit in 2013, 2,780 (more than 95%) were by guilty plea.
                               14


, 71 (1977). “These advantages can be secured,
however, only if dispositions by guilty plea are accorded a
great measure of finality.” 

exist
precisely because they preserve the finality of judgments and
sentences imposed pursuant to valid guilty pleas. United
States v. Wiggins, 

, 54 (4th Cir. 1990).

        Erwin’s plea agreement constituted a classic
bargained-for exchange. Erwin agreed to plead guilty and to
assist the Government in obtaining guilty pleas from his
codefendants, conserving Government resources that would
otherwise have been expended on his prosecution and those
of his coconspirators. To ensure that prosecutorial resources
would not be expended on him in the future, Erwin
relinquished his right to appeal most aspects of his sentence.
In return, the Government promised not to initiate additional
criminal charges against Erwin for his role in the conspiracy,
and it agreed to seek a § 5K1.1 departure if Erwin cooperated.
Erwin received the full benefit of his bargain because the
court accepted his guilty plea (resulting in the speedy
disposition of his case) and granted the Government’s request
for a downward departure (yielding a sentence more than four
years below the statutory maximum). That Erwin received a
shorter sentence than he would have in the absence of the
bargain is evidenced by the court’s telling statement at
sentencing that “but for” the Government’s motion, it “would
have been happy” to impose a longer term. App. 49.

        In contrast to Erwin, who fully benefited from the plea
agreement, the Government devoted valuable resources to
litigating an appeal that should never have been filed in the
first place. “Empty promises are worthless promises; if
defendants could retract their waivers . . . then they could not
obtain concessions by promising not to appeal. Although any
given defendant would like to obtain the concession and
exercise the right as well, prosecutors cannot be fooled in the
long run.” United States v. Wenger, 

, 282 (7th
Cir. 1995). Erwin is no exception. He purposely exchanged
the right to appeal for items that were, to him, of equal or
greater value. Having reaped the benefits of his plea
agreement, he cannot avoid its principal detriment — to put it
colloquially, he cannot “have his cake and eat it too.” 

Under basic principles of contract law, “[d]efendants

                              15
must take the bitter with the sweet.” 

see also
United States v. Cianci, 

, 110 (3d Cir. 1998)
(“Under the law of this circuit, [a defendant] cannot renege on
his agreement.”).
       “When the government breaches a plea agreement, the
general rule is to remand the case to the district court for a
determination whether to grant specific performance or to
allow withdrawal of the plea.” United States v. Nolan-
Cooper, 

, 241 (3d Cir. 1998). However, “we
have allowed for an exception when the circumstances dictate
that there is only one appropriate remedy for the defendant.”

; see, e.g., United States v.
Badaracco, 

, 941 (3d Cir. 1992) (holding that
permitting withdrawal of the defendant’s plea would “be an
empty remedy,” as he had already served much of his
sentence); see also 

(noting
that a court should not impose a remedy against a non-
breaching party’s will). Similarly, we have observed that
“when the government requests specific performance at the
hands of a defendant’s breach [of the plea agreement], . . .
resentencing under the terms of the executed plea agreement
might be the only appropriate remedy.” 

–28; see 

(agreeing with
the parties that “if we found a breach of the plea bargain, the
case should be remanded for a full resentencing”).

       We agree with the Government that specific
performance is warranted here, and, as in Williams, specific
performance means de novo resentencing. As a general
matter, “[s]pecific performance is feasible and is a lesser
burden on the government and defendant.” United States v.
Kurkculer, 

, 302 (1st Cir. 1990), quoted in

. Specific performance
certainly is feasible where, as in this case, the plea agreement
contained a detailed breach provision:

       Should Christopher Erwin . . . violate any
       provision of . . . the plea agreement . . . [the
       United States Attorney’s] Office will be
       released from its obligations under this
       agreement and the plea agreement, including
       any obligation to file a motion under U.S.S.G. §
       5K1.1 . . . .

                              16
Supp. App. 48 (emphases added). We previously held that a
defendant’s breach of his plea agreement in advance of
sentencing excused the Government from its obligation to
move for a downward departure. United States v. Swint, 

, 254 (3d Cir. 2000).8

       In summary, because Erwin’s breach of the plea
agreement occurred post-sentencing, we will vacate his
sentence and remand for resentencing where, in light of his
breach, the Government will be relieved of its obligation to
seek a downward departure.

                               C.

        Unlike in Williams, where the Government appealed
the judgment of sentence, the Government neither appealed
nor cross-appealed in this case. We are therefore confronted
by, and heard oral argument on, a question of first
impression: whether the possibility of de novo resentencing
is barred by application of the cross-appeal rule, which
provides that “a party aggrieved by a decision of the district
court must file an appeal in order to receive relief from the
decision.” United States v. Tabor Court Realty Corp., 

, 342 (3d Cir. 1991); see also United States v. Am.
Ry. Express, 

, 435 (1924) (“[A] party who does
not appeal from a final decree of the trial court . . . may not
attack the decree with a view either to enlarging his own
rights thereunder or of lessening the rights of his adversary . .
.”). We conclude that the cross-appeal rule does not apply



8
  Erwin insists that the Government has “lost its discretion”
not to request a downward departure, because it has already
requested one. Reply Br. 11–12. While inventive, this
argument is unpersuasive. The only reason the Government
is seeking to withdraw a motion that it has already filed is
because Erwin elected to breach his agreement after
benefiting from the motion. Erwin’s interpretation would
“eviscerate one purpose of the plea agreement,” namely, “to
make him earn the downward departure motion.” 

.
                               17
and consequently does not bar the Government from seeking
de novo resentencing.9
        First, the Government could not have filed a cross-
appeal even if it wanted to do so. Congress has vested
appellate jurisdiction in the Courts of Appeals for review of
final decisions of the district courts. “It is axiomatic that only
a party aggrieved by a final judgment may appeal.” Rhoads
v. Ford Motor Co., 

, 934 (3d Cir. 1975). The
same is true of cross-appellants. See, e.g., Am. Gen. Life Ins.
Co. v. Schoenthal Family, LLC, 

, 1343 (11th
Cir. 2009) (“[A]n appellee is not entitled to cross-appeal a
judgment in his favor.”); Great Am. Audio Corp. v. Metacom,
Inc., 

, 19 (2d Cir. 1991) (dismissing cross-appeal
for lack of jurisdiction); see also United States v. Atiyeh, 

, 358 (3d Cir. 2005) (articulating bases of
jurisdiction over the Government’s cross-appeal). “A party
who receives all that he has sought generally is not aggrieved
by the judgment affording the relief and cannot appeal from
it.” Deposit Guar. Nat’l Bank v. Roper, 

, 333
(1980).      This requirement does not derive from the
jurisdictional limitations of Article III, but rather “from the
statutes granting appellate jurisdiction and the historic
practices of the appellate courts.” 

Government enjoys no inherent right to
appeal a criminal judgment . . . .” Arizona v. Manypenny,

, 246 (1981). The grant of general appellate
jurisdiction in 28 U.S.C. § 1291 does not authorize such an
appeal, 

U.S.C. § 3731 (establishing, inter alia,
appellate jurisdiction over a Government appeal from a
district court’s order dismissing an indictment or granting a
new trial), has no relevance here. See United States v. Ferri,

, 151 (3d Cir. 1982). The sole source of
authority for a Government appeal in this case would lie, if
anywhere, in 18 U.S.C. § 3742. That statute permits the
Government to appeal a defendant’s sentence where the
sentence: (1) was imposed in violation of law; (2) resulted
from an incorrect application of the Sentencing Guidelines;

9
  In light of this conclusion, we do not resolve whether the
cross-appeal rule is jurisdictional or a matter of practice and,
if the latter, whether this case warrants drawing an exception
to the rule.
                               18
(3) departed from the applicable Guideline range; or (4) was
plainly unreasonable, if imposed for an offense where there is
no applicable Guideline. 18 U.S.C. § 3742(b).

        The Government’s argument does not fall into any of
these categories, as Erwin’s breach of the plea agreement
occurred post-sentencing and was in no way sanctioned by
the District Court. The District Court gave the Government
everything it wanted with respect to Erwin’s sentence — that
is, it imposed a judgment of sentence that resulted from
offense level 39 and criminal history category I and further
incorporated the Government’s § 5K1.1 motion. There was
(and remains) no “sentencing error” for the Government to
challenge for purposes of § 3742(b). It would be nonsensical
to fault the Government for filing an appeal that we surely
would have dismissed for lack of jurisdiction.10

       Moreover, the remedy of de novo resentencing neither
enlarges the Government’s rights nor lessens Erwin’s. A

10
   The Government could have moved to enforce the waiver
and summarily affirm Erwin’s appeal pursuant to Third
Circuit L.A.R. 27.4 rather than waiting to raise the issue in
the ordinary briefing schedule.      See United States v.
Goodson, 

, 534 n.2 (3d Cir. 2008). The
Government notes that it did not file such a motion in this
case because it was engaged in negotiations with defense
counsel regarding the decision to proceed with Erwin’s
appeal in light of the waiver. Gov’t Br. 19 n.3. We
encourage the Government to seek summary action under
Rule 27.4 where possible and as early as possible, as doing so
minimizes the amount of Government (and judicial) resources
spent on appeals barred by appellate waivers. However, that
the Government could have expended fewer resources is of
no legal moment in this case: what matters is that Erwin
breached the agreement, not how costly the breach was. In
any event, the costs are not trivial when considered in the
aggregate — in 2013 alone, nearly 50 motions to enforce an
appellate waiver were filed within our circuit, the vast
majority of which were granted. We are not confronted by,
and therefore need not resolve, whether the Government may
seek remedies other than summary affirmance of an appeal in
a Rule 27.4 motion.
                             19
cross-appeal must be filed to secure a favorable modification
of the judgment. See Am. Ry. 

. As

, Erwin contends that the District Court erred
in its initial Guidelines calculation. To remedy the error, he
asks this Court to vacate his sentence and remand for a new
sentencing hearing. Our decision to vacate Erwin’s sentence
and remand for de novo resentencing does not lessen his
rights, as we are giving him exactly what he asked for.
Neither does our decision enlarge the Government’s rights:
as the Government acknowledges, Erwin is free to argue not
only that he is entitled to a variance, but also that the variance
should be applied to the statutory maximum instead of to the
initial Guidelines calculation. See U.S.S.G. § 5G1.1(a). Of
course, the District Court may exercise its discretion to accept
or reject any such argument pursuant to § 3553(a).

       The Supreme Court’s most recent decision dealing
with the cross-appeal rule in the criminal context, Greenlaw
v. United States, 

(2008), is not to the contrary.
The defendant in Greenlaw appealed as too long a 442-month
sentence. 

The Government did not appeal or
cross-appeal. 

However, to counter the defendant’s
argument that his sentence was unreasonably long, the
Government noted that the sentence should have been fifteen
years longer because he was convicted of two violations of 18
U.S.C. § 924(c)(1)(A).11 

the plain error rule,
the Court of Appeals for the Eighth Circuit vacated the
sentence and instructed the district court to impose the
statutorily mandated consecutive minimum sentence, which it
did. 

The defendant petitioned for certiorari as
to the following issue: “When a defendant unsuccessfully

11
    Under § 924(c)(1)(C)(i), “[i]n the case of a second or
subsequent conviction under this subsection, the person shall .
. . be sentenced to a term of imprisonment of not less than 25
years.” Any sentence for violating § 924(c) must run
consecutively to “any other term of imprisonment,” including
any other conviction under § 924(c). § 924(c)(1)(D)(ii). For
the first § 924(c) offense, the district court imposed a five-
year sentence under § 924(c)(1)(A)(i). As to the second §
924(c) conviction, the district court erroneously imposed the
ten-year term prescribed in § 924(c)(1)(A)(iii) for first-time

–42.
                               20
challenges his sentence as too high, may a [C]ourt of
[A]ppeals, on its own initiative, increase the sentence absent a
cross-appeal by the Government?” 

        The Supreme Court held that it could not. It reasoned
that “[e]ven if there might be circumstances in which it would
be proper for an appellate court to initiate plain-error review,
sentencing errors that the Government refrained from
pursuing would not fit the bill” in light of § 3742(b)’s
“dispositive direction.” 

In so holding, the Court
recognized the importance of providing notice to a criminal
defendant that “on his own appeal, his sentence would be
increased.” 

In this case, unlike in Greenlaw,
the Government did not deliberately disregard a sentencing
error, and Erwin — whose entire appeal rests on the terms of
his plea agreement — should have anticipated the possibility
that he breached the agreement by appealing and thereby
triggered the possibility of relief for his adversary. See
United States v. Wells, 

, 467 (5th Cir. 2001)
(“[A] reasonable defendant would understand that his breach
of the plea agreement would motivate the government to
[withdraw leniency].”).12

       The Court of Appeals for the Seventh Circuit has held
that a defendant’s breach of his appellate waiver provision
permits the Government to seek specific performance of the
plea agreement, notwithstanding the absence of a

12
   In United States v. Harvey, 

(3d Cir. 1993), a
pre-Greenlaw decision, the Government argued in response to
the defendant’s sentencing appeal that the district court
erroneously calculated the applicable base offense level as 22
instead of 25. 

The Government conceded, and
we agreed, that its failure to file a cross-appeal precluded it
from obtaining a sentence “more favorable” than that already
imposed. 

1330. Our decision in Harvey is
consistent with Greenlaw — and does not guide our decision
today — because the Government similarly declined to
exercise its discretion to correct a sentencing error below that
it easily could have challenged on appeal.              Whereas
“fundamental fairness” dictated an outcome favorable to the
defendant in Harvey and Greenlaw, it dictates an opposite
conclusion in this case.
                              21
Government cross-appeal. In United States v. Hare, 

(7th Cir. 2001), the defendant was charged with three
federal crimes and pleaded guilty to one; the Government
dismissed the other two and promised to recommend a
reduction in offense level in exchange for his cooperation. 

The defendant promised, among other things, not to
appeal from the sentence — a promise that he subsequently
breached. 

of Appeals held that dismissal of
Hare’s impermissible appeal would be an “incomplete
response” because “the prosecutorial resources are down the
drain.” 

But the court explained that there is
another remedy: “[i]f the defendant does not keep his
promises, the prosecutor is not bound either.” 

United States is free to reinstate dismissed charges and
continue the prosecution.” Id.; see also United States v.
Poindexter, 

, 271 (4th Cir. 2007) (determining
that the Government may argue that “it is no longer bound by
the plea agreement because the defendant’s appeal amounts to
a breach of that agreement”).

        The Supreme Court’s decision in Ricketts v. Adamson,

(1987) is also instructive. The defendant agreed to
plead guilty to second degree murder and to testify against
two alleged coconspirators. 

While the defendant
testified against the coconspirators in their initial trial, he
refused to testify again when a retrial was ordered. 

The State filed a new information charging the defendant with
first degree murder, and the defendant’s motion to quash the
information on double jeopardy grounds was denied. 

The Arizona Supreme Court rejected the defendant’s double
jeopardy claim, holding that the plea agreement “by its very
terms waives the defense of double jeopardy if the agreement
is violated.” 

(quotation marks omitted). On federal
habeas review, the Supreme Court agreed that the defendant’s
breach of the plea agreement removed the double jeopardy
bar to prosecution on the first degree murder charge. 

In so holding, the Court emphasized that “[t]he State did not
force the breach; [the defendant] chose, perhaps for strategic
reasons or as a gamble, to advance an interpretation of the
agreement that proved erroneous.” 

Here too, Erwin
made a calculated decision to advance an interpretation of his
appellate waiver that proved erroneous. It would be unjust to
permit him to escape the consequences.

                              22
       Having determined that the cross-appeal rule does not
apply under these circumstances, we finally consider the
source of our authority to grant de novo resentencing. That
authority can be found in 28 U.S.C. § 2106, which permits us
to modify, vacate, set aside, or reverse any judgment
“lawfully brought before [us]” for review. Section 2106
further provides that we may remand the cause and direct the
entry of such appropriate judgment, or “require such further
proceedings to be had,” as may be just under the
circumstances. “[I]n determining what justice does require,
the Court is bound to consider any change, either in fact or in
law, which has supervened since the judgment was entered.”
In re Elmore, 

, 127 & n.12 (D.C. Cir. 1967) (per
curiam) (quotation marks omitted) (citing § 2106); see also
Hormel v. Helvering, 

, 557 (1941) (“There may
always be exceptional cases or particular circumstances
which will prompt a[n] . . . appellate court, where injustice
might otherwise result, to consider questions of law which
were neither pressed nor passed upon by the court . . .
below.”).

        The validity of Erwin’s sentence was lawfully brought
before us via Erwin’s direct appeal. See 18 U.S.C. § 3742(a).
“When an appeal is taken from an order made appealable by
statute, we have all the powers with respect to that order
listed in 28 U.S.C. § 2106.” United Parcel Serv., Inc. v. U.S.
Postal Serv., 

, 107 (3d Cir. 1980).
Since the judgment was entered, there has been a significant
change in fact (Erwin’s breach of the plea agreement). As
discussed at length above, de novo resentencing is not only
just, but is also consistent with basic principles of contract
law and the plain language of the plea agreement.

        Contrary to Erwin’s position, we do not believe that
our holding will “end this Court’s review for miscarriage of
justice.” Reply Br. 10. We will continue to review
conscientiously whether enforcing defendants’ appellate
waivers would yield a miscarriage of justice (as well as
whether a waiver was knowingly and voluntarily entered into
and whether the issues raised fall within the scope of the
waiver) but, as 

, any such defendant must


                              23
accept the risk that, if he does not succeed, enforcing the
waiver may not be the only consequence.

        Accordingly, we will grant this relief pursuant to §
2106.

                        * * * * *

       “[B]oth the government and the defendant must fulfill
promises made to achieve a plea agreement.” United States
v. Forney, 

, 1500 n.2 (11th Cir. 1993). Yet, “[i]n
what has become a common sequence, a defendant who
waived his appellate rights as part of a plea bargain, and
received a substantial benefit in exchange, has failed to keep
his promise.” United States v. Whitlow, 

, 639
(7th Cir. 2002). We hold that, like any defendant who
breaches a plea agreement in advance of sentencing, a
defendant who breaches his plea agreement by appealing
thereby subjects himself to the agreement’s breach provision.
The breach provision in this case permits the Government to
withdraw its motion for a downward departure. To that end,
we will vacate and remand Erwin’s judgment of sentence.
Consistent with our precedent, Erwin will be resentenced by a
different district judge than the one who presided over the
now-vacated sentence. See 

;
see also 

.13

                             IV.

       For the foregoing reasons, we will vacate Erwin’s
judgment of sentence and remand to the District Court for
resentencing before a different judge.




13
  Our precedent compels assigning the case to another judge
for resentencing “irrespective of the fact that the need for
resentencing . . . is not attributable to any error by the
sentencing judge.” 

. We
emphasize that the reason for the reassignment in this case is
not due to any error on the sentencing judge’s part and that
we have no doubt she could resentence Erwin fairly.
                             24