On March 31, 2020, Timothy Beston, Jr. drove a stolen vehicle into a lake on Indian territory in North Dakota. He agreed to plead guilty to one count of malicious mischief pursuant to a written agreement with the government that included: (1) the government’s agreement to recommend $16,950 in restitution at sentencing, and (2) an appellate waiver prohibiting Beston from seeking review of restitution.
At sentencing, the government failed to recommend the $16,950 restitution as agreed. Instead, it asked for more than $30,000 in restitution, which the PSR recommended after the government turned over victim impact statements to the probation officer preparing the PSR. Beston did not make any written objections to the PSR, but the court considered his oral objection to the restitution amount during the sentencing hearing. Specifically, Beston argued that the amount reflected in the PSR exceeded the actual loss caused by his conduct. However, he failed to object specifically on the ground that the government was breached the plea agreement by failing to recommend the agreed-upon restitution amount at sentencing.
The district court ordered restitution consistent with the PSR. Beston then appealed, seeking specific performance of the plea agreement. As Beston failed to raise the government’s breach at sentencing, the Eighth Circuit considered his appeal for plain error review. After holding that the government’s breach seriously affected the fairness of the proceeding such that the panel could reach the merits of Beston’s appeal despite the waiver, the Eighth Circuit found error in the district court’s calculation of restitution.
In a dissenting opinion, Colloton would have found that Beston failed to show a reasonable probability that, but for the breach, the outcome would have been different. Even if the government had faithfully adhered to the plea agreement at sentencing, that recommendation would not have bound the district court—a fact which Beston repeatedly acknowledged at sentencing, despite raising no objection to the breach. And it was not incumbent upon the trial court to explicitly state that an error not contemporaneously objected to had failed to impact its decision, as this was Beston’s procedural hurdle to overcome. In its view, the majority gives defendants license not to object to such breaches in the future for, if a district court doesn’t decide their way the first time, they can claim the error on appeal and try again a second time.
Appeal from the District of North Dakota
Opinion by Shepherd
Concurrence by Loken
Dissent by Colloton
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