United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2197
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                               Nicholas Gilbert Beattie

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                            Submitted: January 18, 2019
                               Filed: April 1, 2019
                                  ____________

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
                       ____________

WOLLMAN, Circuit Judge.

       Nicholas Gilbert Beattie pleaded guilty to receiving visual depictions of minors
engaging in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(2) and
(b)(1). The district court1 sentenced him to 190 months’ imprisonment, to be

      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
followed by 240 months’ supervised release. Beattie appeals, arguing that the
government breached the plea agreement and asking that we vacate his sentence and
remand for resentencing by a different judge. Beattie further argues that the district
court erred in applying a 2-level increase for obstruction of justice pursuant to
§ 3C1.1 of the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines) and that the court
erred in failing to credit Beattie with acceptance of responsibility under U.S.S.G.
§ 3E1.1.

       In an online chat room in November 2015, Beattie, under the username
“incestlvr87,” posted a fifty-three-second video of an adult performing a sex act on
an infant. A concerned citizen reported the video, and law enforcement officials
traced the username to Beattie. The concerned citizen also reported that Beattie had
tried to persuade her to start an incestuous family, that his prior marriage had ended
in divorce because he desired to have an incestuous family, and that his ex-wife had
found incest videos on his phone. Beattie also told the concerned citizen his first
name, his phone number, and his place of employment.

      Law enforcement officers executed a search warrant at Beattie’s workplace and
residence in December 2015. The officers found drugs and drug paraphernalia on
Beattie’s bed. Several electronic devices were seized from his home, but Beattie
refused to unlock his cell phone upon the officers’ request. Beattie was then taken
into custody on an unrelated warrant. Law enforcement obtained a second search
warrant to compel Beattie to provide the passcode to a seized iPhone and iPad, in
response to which Beattie provided incorrect passcodes.

       Twenty images and thirty-one videos of child pornography were found on
certain electronic devices that were not passcode-protected. The child pornography
displayed prepubescent minors engaging in masturbation, oral and vaginal sex, and




                                         -2-
bestiality. Beattie had also carried out a number of searches and downloads for incest
pornography and bestiality.

      Beattie pleaded guilty in October 2017. The plea agreement was subsequently
accepted by the district court and provided in part that:

      The Government agrees to recommend that Defendant receive credit for
      acceptance of responsibility under USSG § 3E1.1. The Government
      reserves the right to oppose a reduction under § 3El.1 if after the plea
      proceeding Defendant obstructs justice, fails to cooperate fully and
      truthfully with the United States Probation Office, attempts to withdraw
      Defendant’s plea, or otherwise engages in conduct not consistent with
      acceptance of responsibility.

The plea agreement was silent on the government’s obligation regarding an
obstruction of justice enhancement under § 3C1.1. Following the plea proceeding,
the government advised the probation office of its belief that Beattie’s Guidelines
range was 151-188 months.

        The draft presentence report (PSR) determined that Beattie’s base offense level
was 22. It applied a 2-level increase for obstruction of justice based on Beattie’s
failure to disclose correct passcodes, along with several other enhancements not at
issue on appeal, and determined that Beattie’s total offense level was 39. The PSR
did not apply any reduction for acceptance of responsibility. With a criminal history
category of I, the Guidelines sentencing range was 262 to 327 months’ imprisonment,
with a statutory maximum sentence of 240 months’ imprisonment. The government
objected to the PSR’s denial of acceptance of responsibility on December 27, 2017,
but remained silent on the obstruction of justice enhancement. The government stated
that it “adheres to its agreement to recommend a 3-level reduction for acceptance of
responsibility” but added that “[t]he court will have to determine whether the
defendant’s refusal to comply with a state warrant to provide access to his phone is


                                         -3-
sufficient obstruction of justice to merit denial of acceptance of responsibility.”
Beattie objected to the PSR recommendations as well, challenging the application of
the obstruction of justice enhancement and the denial of the acceptance of
responsibility reduction.

         The government argued in its sentencing brief that the increase for obstruction
of justice was warranted based on Beattie’s failure to furnish the passcodes in
December 2015. In response, Beattie filed his first motion to compel specific
performance of the plea agreement, arguing that the government had breached the
agreement by requesting an obstruction of justice enhancement for conduct that
occurred prior to the plea proceeding. The government then asserted that although
it still adhered “to its general obligation in the Plea Agreement to ask the court to give
[Beattie] credit for accepting responsibility,” Beattie had engaged in post-plea
conduct that called into question his acceptance of responsibility. Specifically, that
Beattie had offered expert reports wherein he claimed that he did not remember
collecting child pornography. The district court denied Beattie’s first motion to
compel because the plea agreement did not prohibit the government from advocating
for an obstruction of justice enhancement.

      In response to the government’s reply to his first motion, Beattie filed a second
motion to compel, arguing that the government had breached the plea agreement by
indicating that Beattie’s statements in the expert reports might warrant a denial of an
acceptance of responsibility reduction, even though it ultimately recommended
acceptance of responsibility. The district court denied Beattie’s second motion to
compel, stating at the sentencing hearing that “[h]ere, the Government, in its response
to the original motion for a specific performance, highlighted aspects of the
defenses’s case that gave it pause, and yet it continued to recommend acceptance of
responsibility.”




                                           -4-
       A probation officer found a powered-on iPhone at Beattie’s residence during
a routine visit on May 3, 2018. The conditions of Beattie’s pretrial release prohibited
him from possessing internet-capable devices. Beattie told the probation officer that
the iPhone was his fiancée’s. The probation officer tried to call Beattie’s fiancée,
whereupon Beattie confessed that the iPhone was his and that he had found it while
packing for his anticipated term of imprisonment. Beattie provided the officer with
an unworkable passcode, which prevented the officer from checking its contents.
Beattie’s father later claimed that the iPhone had been in his possession. Beattie then
equivocally claimed that his father had given the iPhone to him and that he may have
tried to access it. Beattie’s pretrial release was then revoked based on his possession
of the iPhone.

       During the May 16, 2018, sentencing hearing, the government argued that
Beattie should be denied an acceptance of responsibility reduction. The court
concluded that Beattie’s conduct was inconsistent with acceptance of responsibility
and denied the reduction. The district court also concluded that Beattie had
obstructed justice. The district court varied downward from the 240-month statutory
maximum sentence and imposed a 190-month sentence “to account for [Beattie’s]
positive aspects in his history and characteristics that are not otherwise accounted for
in the guideline[s, and] the brevity of the criminal conduct as highlighted by the
defense.”

                                           I.

       We review de novo questions regarding the interpretation and enforcement of
plea agreements. United States v. Mosley, 

, 808 (8th Cir. 2007).
“Where a plea agreement has been accepted by the court, we generally interpret the
meaning of the terms in the agreement according to basic principles of contract law.”
Id. If we conclude that the government has breached the plea agreement, the case



                                          -5-
should be remanded to a different judge for resentencing. Id. at 812 (citing
Santobello v. New York, 

, 263 (1971)).2

       Beattie contends that the government first breached the plea agreement in its
December 27, 2017, objections to the PSR. Specifically, the government
recommended a reduction for acceptance of responsibility but stated that it was
ultimately for the court to decide whether Beattie’s pre-plea conduct would “merit
denial of acceptance of responsibility.” Beattie contends that the government’s
conduct here is similar to that in United States v. Thompson, 

, 1040-41
(8th Cir. 2005), wherein we concluded that the government had breached the plea
agreement by arguing that the factual stipulations surrounding the defendant’s
conduct supported the applicability of U.S.S.G. § 2K2.1(c)(1) because of a felony
assault, which the government had promised not to argue. Specifically, the
prosecutor stated that the facts the defendant admitted “in and of themselves establish
felonious assault.” Id. at 1038. But unlike Thompson, the government here did not
argue that the facts surrounding Beattie’s pre-plea conduct ipso facto established a
denial of acceptance of responsibility. Instead, the government merely noted that the
court would ultimately determine whether the facts supported a denial of a reduction
for acceptance of responsibility, a declaration that fell short of a breach of the plea
agreement.




      2
       The district court indicated at sentencing that it would have imposed the same
sentence regardless of whether it had granted a reduction for acceptance of
responsibility or an adjustment for obstruction of justice. In light of our holding that
no breach occurred, we need not consider whether our precedent precluding the
application of harmless error analysis in breach cases should be reconsidered by the
court en banc. See Mosley, 505 F.3d at 810, 811-12.



                                          -6-
      Beattie next argues that the government breached the plea agreement when it
argued for an obstruction of justice enhancement in its sentencing brief. He claims
that such conduct amounted to a de facto argument against an acceptance of
responsibility reduction. The government explained, however, that Beattie’s situation
was one of the extraordinary cases in which adjustments under both § 3C1.1 and
§ 3E1.1 may apply. See United States v. McDonald, 

, 1072 (8th Cir.
2016) (per curiam) (“Absent extraordinary circumstances, obstruction of justice
‘ordinarily indicates that the defendant has not accepted responsibility for his criminal
conduct.’” (quoting U.S.S.G. § 3E1.1 cmt. n.4)). We conclude that the government’s
argument in favor of an obstruction of justice enhancement was not synonymous with
an argument against an acceptance of responsibility reduction.

       United States v. St. Pierre, 

 (8th Cir. 2019), is instructive. In that
case, the defendant’s plea agreement did not mention an obstruction of justice
enhancement under § 3C1.1 but did recommend a reduction under § 3E1.1. Id. at
1141-42. The PSR applied an obstruction of justice enhancement and included an
addendum defending its application. Id. at 1142. The government adopted the PSR
addendum but asked that the court nonetheless grant a reduction for timely
acceptance of responsibility. Id. We held that the government had not breached the
plea agreement, because it had fulfilled its promise to recommend the agreed-upon
Guidelines range set out in the plea agreement. Id. at 1143. Here, the plea agreement
also does not mention § 3C1.1, and the government thus did not breach the plea
agreement by arguing for an obstruction of justice enhancement for Beattie’s pre-plea
conduct, while at the same time adhering to its recommendation for an acceptance of
responsibility reduction under § 3E1.1. See United States v. Has No Horses, 

, 750-51 (8th Cir. 2001) (noting that the government may argue for an obstruction
of justice enhancement without necessarily breaching a plea agreement duty to
recommend an acceptance of responsibility reduction).




                                           -7-
       Beattie also argues that, in its response his first motion to compel, the
government breached the plea agreement when it suggested that Beattie’s comments
in the expert reports came “dangerously close” to abrogating the government’s duty
to recommend acceptance of responsibility, pointing to Beattie’s attempts to minimize
his criminal conduct by blaming his behavior on his methamphetamine use and
stating that he did not remember committing the offense. Notwithstanding this
statement, the government continued by “afford[ing Beattie] the benefit of the doubt
and adher[ing] to its general obligation . . . to ask the court to give him credit for
accepting responsibility.” We thus conclude that the government did not breach the
plea agreement when it pointed out its right to argue against an acceptance of
responsibility reduction for Beattie’s post-plea conduct but chose not to assert that
right.

       Nor did the government breach the plea agreement when it argued against
acceptance of responsibility following revocation of Beattie’s pretrial release.
Beattie’s evasive conduct during the probation officer’s home visit was sufficient to
trigger the exception to the government’s duty to argue for an acceptance of
responsibility reduction, because Beattie had “fail[ed] to cooperate fully and
truthfully with the United States Probation Office.”

                                          II.

       Beattie next contends that the court erred when it applied a 2-level increase for
obstruction of justice under § 3C1.1. We review a district court’s interpretation and
application of the Guidelines de novo and its factual findings for clear error. United
States v. Bates, 

, 1108 (8th Cir. 2009). “We give great deference to a
district court’s decision to impose an obstruction of justice enhancement, reversing
only when the district court’s findings are insufficient.” United States v.
Cunningham, 

, 730 (8th Cir. 2010). Section 3C1.1 of the Guidelines



                                          -8-
provides that a violation requires proof that the defendant (1) “willfully obstructed
or impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of
conviction”; and (2) that “the obstructive conduct related to (A) the defendant’s offense
of conviction and any relevant conduct; or (B) a closely related offense.” Such
obstruction may include “providing materially false information to a probation officer
in respect to a presentence or other investigation for the court.” U.S.S.G. § 3C1.1 cmt.
n.4(H).

      The district court found that Beattie first obstructed justice when, in response
to a warrant, he provided incorrect passcodes to his iPhone and iPad in December
2015. Beattie contends that the furnishing of passcodes was testimonial and that he
was asserting his Fifth Amendment privilege against compelled self-incrimination.
But the court did not clearly err when it found that, in light of his similar post-plea
conduct, Beattie was not honestly unable to recall the passcodes. United States v.
Lange, 

, 709 (8th Cir. 1990) (“There is no constitutional right to lie.”).
Furthermore, Beattie’s failure to provide correct passcodes impeded the investigation
into his possession of child pornography. The district court thus did not err in
determining that Beattie’s December 2015 conduct obstructed justice and warranted
an increase under the Guidelines.

       The court also concluded that Beattie obstructed justice by lying to the
probation officer about the iPhone that he possessed in violation of the conditions of
his pretrial release. Beattie argues that his lie was not related to the instant offense of
his conviction, as in United States v. Galaviz, 

, 1043 (8th Cir. 2012),
wherein the defendant, after he had pleaded guilty, conspired to murder a confidential
informant from his case. We concluded that the defendant “could not have intended to
obstruct justice ‘with respect to the instant offense’ by plotting to kill [the informant]
unless he thought that [the informant] was going to testify against him at sentencing.”
Id. Here, in contrast, the probation officer’s findings regarding the iPhone could have

                                           -9-
been used against Beattie during sentencing. We conclude that by providing false
information about possessing a device with internet capability—conduct he knew was
forbidden—Beattie committed a willful obstruction of the administration of justice
related to his sentencing. See United States v. St. James, 

, 988 (8th Cir.
1994) (concluding that defendant’s materially false statements to a pretrial services
officer investigating the defendant’s pretrial release warranted an obstruction of justice
enhancement).

       Beattie also argues that his false statement to the probation officer was not
material. He cites United States v. Yell, 

, 583 (8th Cir. 1994), in which
we concluded that the defendant’s false statement to a probation officer was not
material and did not merit an obstruction of justice enhancement under § 3C1.1. But
in Yell, the defendant first was truthful about the information, then he briefly lied to
the probation officer, then subsequently corrected the inconsistency. Id. Here,
Beattie lied initially about the iPhone’s owner and subsequently told multiple
different stories about the phone. Beattie’s false statement was thus material and
warranted an obstruction of justice enhancement.

                                           III.

      Beattie contends that the district court also erred when it denied him a
reduction for acceptance of responsibility. “Whether the defendant accepted
responsibility is a factual question that depends largely on credibility assessments
made by the sentencing court. This Court gives great deference to the district court’s
denial of a request for a reduction for acceptance of responsibility and reviews the
decision for clear error.” United States v. Vega, 

, 723 (8th Cir. 2012)
(quoting United States v. Ayala, 

, 1036 (8th Cir. 2010) (per curiam)).




                                          -10-
       In denying an acceptance of responsibility reduction, the district court pointed
to the false information Beattie furnished to his probation officer. As explained
above, conduct amounting to an obstruction of justice ordinarily signals that a
defendant has not accepted responsibility, absent extraordinary circumstances.
McDonald, 826 F.3d at 1072. We conclude that this case does not present the
extraordinary circumstance needed for both an acceptance of responsibility reduction
and an enhancement for obstruction of justice. In addition to his false statements,
Beattie minimized his conduct by placing blame on his methamphetamine use and
claiming that he could not remember collecting child pornography, conduct which is
inconsistent with acceptance of responsibility. See United States v. Zeaiter, 

, 1123-24 (8th Cir. 2018); see also United States v. Johnson, 22 F. App’x 646,
646-47 (8th Cir. 2001) (unpublished) (affirming the denial of an acceptance of
responsibility reduction in a child pornography case “because [the defendant]
continued to minimize his acts and describe them in a way that was both unbelievable
and very self-serving” and “people with [the defendant’s] sexual tendencies typically
minimize their behavior”).

      The judgment is affirmed.

GRUENDER, Circuit Judge, dissenting.

       I would hold that the Government breached the plea agreement on December
27, 2017 when it invited the district court to consider denying Beattie a reduction for
acceptance of responsibility on the basis of his alleged pre-plea obstruction of justice.
Accordingly, I would vacate his sentence and remand for resentencing before a
different judge. See United States v. Mosley, 

, 809-12 (8th Cir. 2007).

      While “[c]ontract principles often provide a useful means by which to . . .
ensure the defendant what is reasonably due to him in the circumstances,” a plea



                                          -11-
agreement “is not simply a contract between two parties.” United States v. Norris,

, 1048 (8th Cir. 2007). “Plea agreements are an essential component
of the administration of justice, and fairness is presupposed in securing such
agreements.” United States v. Mitchell, 

, 1194 (8th Cir. 1998) (internal
quotation marks omitted). Thus, technical adherence by the Government to promises
it makes in plea agreements is not enough. Id. The Government must also uphold the
“spirit” of those promises. Id.; see also United States v. Vennes, 

,
992 (D. Minn. 2015) (noting that the Government “cannot take steps amounting to
an end run around the [plea] agreement”).

       Here, the Government promised to recommend that Beattie “receive credit for
acceptance of responsibility under USSG § 3E1.1.” The Government reserved the
right to oppose such a reduction only if “after the plea proceeding Defendant
obstructs justice, fails to cooperate fully and truthfully with the United States
Probation Office, attempts to withdraw Defendant’s plea, or otherwise engages in
conduct not consistent with acceptance of responsibility.” On December 27, 2017,
the Government purported to adhere to its promise by recommending a reduction for
acceptance of responsibility but then added that “[t]he court will have to determine
whether the defendant’s refusal to comply with a state warrant to provide access to
his phone is sufficient obstruction of justice to merit denial of acceptance of
responsibility.”

       This statement involved more than “merely not[ing] that the court would
ultimately determine whether the facts supported a denial of a reduction for
acceptance of responsibility.” Ante, at 6. Rather, the Government affirmatively
directed the district court to consider specific facts that undermined the Government’s
promise to recommend the acceptance of responsibility reduction. Specifically, the
Government’s statement implied that Beattie’s alleged refusal to comply with a
warrant for access to his phone could be a “sufficient obstruction of justice to merit



                                         -12-
denial of acceptance of responsibility.” But Beattie’s alleged refusal to comply with
the warrant for access to his phone occurred before the plea proceedings. And the
plea agreement only gave the Government the right not to recommend a reduction for
acceptance of responsibility on the basis of an obstruction of justice if that
obstruction occurred after the plea proceeding. Thus, while the Government
purported to recommend a reduction for acceptance of responsibility, it nonetheless
invited the district court to deny a reduction on the basis of an alleged pre-plea
obstructive act. I would hold that this was, at the very least, a violation of the “spirit”
of the plea agreement. See Mitchell, 136 F.3d at 1194.

       Accordingly, I would vacate Beattie’s sentence and remand for resentencing
before a different judge. This is the proper remedy regardless of whether the
Government was subsequently entitled to oppose a reduction for acceptance of
responsibility on the basis of Beattie’s post-plea conduct. See Mosley, 505 F.3d at
810 (holding that “the government’s breach of the plea agreement is not subject to
traditional harmless-error analysis”).
                       ______________________________




                                           -13-