082831P.pdf   05/19/2009  United States  v.  Richard Lovelace
   U.S. Court of Appeals Case No:  08-2831
   District of North Dakota - Fargo   
   [PUBLISHED] [Benton, Author, with Loken, Chief Judge, and Melloy,
   Circuit Judge]
   Criminal case - criminal law. Following Puckett v. United States, 129
   S.Ct. 1423 (2009), the court holds that when a defendant seeks to avoid
   an appellate waiver contained in a plea agreement by arguing, for the first
   time on appeal, that the government breached the plea agreement, this
   court will review the forfeited claim (and related claims) under the plain
   error test of Fed.R.Crim.P.52(b); government breached plea agreement by
   arguing for an increased offense level at sentencing; however, since the
   agreement did not bind the court to accept the lower level the parties had
   bargained for, defendant could not show plain error since he failed to
   establish by a reasonable probability that the government's breach
   affected his substantial rights; district court erred in relying on previously
   undisclosed information at sentencing - the judge's personal knowledge
   of the effects of a 1987 incident involving defendant and Fargo police
   officers - which was not disclosed in the presentence report, and the
   consideration of this information was plain error; since the consideration
   of this undisclosed information seriously affected the fairness of the
   sentence process, defendant's sentence is vacated, and the matter is
   remanded for further sentencing proceedings before a different judge.