UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 3:21-cr-00264-1

BRIAN KELSEY,

Defendant.

MOTION FOR BAIL PENDING APPEAL

Brian Kelsey, through counsel, requests bail pending appeal pursuant to 18

U.S.C. § 3143(b) for the reasons below.

INTRODUCTION

Brian Kelsey is entitled to bail pending appeal because his appeal will raise a

substantial question of law: Did the government breach his plea agreement when it

advocated at sentencing in support of the 2-level upward adjustment for obstruction

of justice under the Sentencing Guidelines? The answer is “Yes.” But the Court need

only find that the question is a “close” one to grant bail.

Under the Bail Reform Act, a defendant who is not a flight risk or danger to

the community is entitled to bail pending appeal if his appeal is not for purposes of

delay and will raise a substantial question of law or fact that, if ruled in his favor,

will result in reversal or an order for new trial.

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 Here, the “substantial question” standard is easily met by the government’s

blatant breach of Mr. Kelsey’s plea agreement at sentencing. Under the plea

agreement, the government was not allowed to argue for an obstruction of justice

enhancement (or any other enhancement not specifically outlined in the agreement).

But it did anyway, arguing that Mr. Kelsey’s conduct “support[ed] application of the

two-level [obstruction] enhancement.”

Although accidental breaches still require relief, this breach was no accident.

In its presentencing filing, the government acknowledged that it could not argue for

the obstruction enhancement under the plea agreement. (Exhibit 1: Position of the

United States Regarding Presentence Report (Doc. 135) at 2-3.) But it wanted to get

around its promise, so it introduced a newly concocted theory that the limitation

applied only if the Court or the Probation Office refused to ask the government for its

position on the enhancement. If it did, according to the government, all bets were off.

And it followed through. At sentencing, the government lied in wait until the

Court asked the rather benign question of whether there was “anything [it] wante[ed]

to say” in response to the defendant’s objection to the obstruction enhancement.

(Exhibit 2: Sent. Hr’g Tr. Excerpt at 11-13.) Rather than abiding by the Agreement’s

terms, it argued that Mr. Kelsey should receive the enhancement. (Id.)

This attempted end-around the plea agreement is contrary to its plain

language and decades of binding case law. Because of the government’s breach,

Mr. Kelsey did not receive the full benefit of his bargain, and his constitutional rights

were violated. Under these circumstances, a long list of Supreme Court and Sixth

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Circuit precedents requires reversal and an opportunity for Mr. Kelsey to withdraw

his plea.

Because this issue raises, at the very least, a “substantial question,” Mr. Kelsey

is entitled to bail pending appeal.

LEGAL STANDARD

To grant bail pending appeal, the Court must find that (as relevant here) “the

appeal is not for purpose of delay and raises a substantial question of law or fact likely

to result in . . . (i) reversal.” 18 U.S.C. § 3143(b)(1).

This standard does not require a district court to determine the likelihood of

its own error. United States v. Pollard, 778 F.2d 1177, 1181-82 (6th Cir. 1985) (citing

United States v. Miller, 753 F.2d 19 (3d Cir. 1985) (“[I]t would have been capricious

of Congress to have conditioned bail only on the willingness of a trial judge to certify

his or her own error.”)). A trial court can be confident in its challenged decision but

still find that a defendant raises a substantial question of law or fact. See id. To raise

a “substantial question of law or fact,” the appeal need only raise an issue of more

substance than would be necessary to find that it was not frivolous. See, e.g., United

States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985). In other words, it must raise

“a ‘close’ question or one that could go either way.” Pollard, 778 F.2d at 1182.

The statute’s “likely to result in reversal” language does not relate to the

likelihood that the appeal will succeed. Rather, it “must be read as going to the

significance of the substantial issue to the ultimate disposition of the appeal.” Miller,

753 F.2d at 23. This requirement is thus met when a contrary appellate holding is

likely to require reversal of the conviction or a new trial. Id.

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 The issue raised here, which Mr. Kelsey will raise on appeal, raises a

substantial question of law and fact which, if decided in his favor, would likely result

in reversal of his convictions by permitting him to withdraw his guilty plea.

FACTUAL BACKGROUND

The Plea Agreement

Under the plea agreement (“Agreement”), Mr. Kelsey agreed to plead guilty to

Counts 1 and 5 of the indictment. (Exhibit 3: Plea Agreement at 3.) He did so in

exchange for specific promises from the government, including that it would dismiss

the remaining counts and agree to certain sentencing recommendations. (Id. at 3, 10-

12.) The Agreement outlined the parties’ position on the appropriate base offense

level and the agreed-to application of three enhancements. (See id. at 10-12.) And the

government agreed to request a downward adjustment if it were satisfied that

Mr. Kelsey had sufficiently accepted responsibility. (Id. at 10-11, ¶ v.) Critical here,

“[t]he parties agree[d] that no additional upward or downward adjustments [were]

appropriate.” (Id. at 11, ¶ vi.)

The Agreement also contained the commonsense disclaimer that the parties’

agreement that no additional upward or downward adjustments were appropriate

was not binding on the Court or the Probation Office. (Id. at 11 ¶ c.) And the

Agreement remained valid whether the Probation Office or the Court agreed with the

parties’ recommendation. (Id.)

The Government’s Sentencing Filing

Before sentencing, the government filed its Position of the United States

Regarding Presentence Report. (See Ex. 1.) There, the government noted that the

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Probation Office had recommended “an additional 2-level increase for obstruction of

justice” related to Mr. Kelsey’s testimony at his Change of Plea Hearing. (Id. at 2.)

And it provided the Court with facts it deemed relevant to the Court’s determination

of whether to apply the enhancement. (Id.)

But in line with the Agreement, the government reminded the Court that the

parties had agreed that “‘no additional upward or downward adjustments [to the

offense level] are appropriate’ beyond those listed in the agreement.” (Id. at 2-3.) And

it “maintain[ed] that, despite the defendant’s subsequent attempt to withdraw his

pleas and perjury, th[e] Court should accept the original plea agreement. As a result,

per the agreement’s terms, the government does not advocate for the application of

the obstruction enhancement.” (Id. at 3.) This was all appropriate under the

Agreement.

But the government could not leave well enough alone. It followed its

disavowal of the obstruction enhancement with the following invitation to the Court

that, as it made clear later, it believed was an end-around the Agreement allowing it

to advocate for the enhancement:

Notably, though, the plea agreement states that, “[i]n the event that the
Probation Office or the Court contemplates any U.S.S.G. adjustments,
departures, or calculations different from those recommended [in the
plea agreement], the parties reserve the right to answer any inquiries
and to make all appropriate arguments concerning the same.” DE 73 at
11. Therefore, if at the sentencing hearing the Court requests the
government’s assessment of whether the defendant’s post-plea conduct
falls within the definitions provided in § 3C1.1, the government will
provide its assessment.

(Id.)

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 In other words, the government claimed that, if the Court asked it whether it

believed the enhancement was appropriate, the Agreement’s provision prohibiting it

from arguing in support of the enhancement was void.

The Sentencing Hearing

During the sentencing hearing, defense counsel argued against the obstruction

of justice enhancement recommended by the Probation Office. (Ex. 2: Sent. Hr’g Tr.

Excerpt at 9-11.) The Court then asked the government if there was “[a]nything [it]

want[ed] to say on the objection to the -- to the obstruction of justice?” (Id. at 11.) The

government said yes and began reading its position on the enhancement. (Id. at 11.)

It first paid lip-service to the Agreement: “As the Court is, of course, aware, that

enhancement was not contemplated in the plea agreement between the parties,

which, of course, was entered into before Mr. Kelsey moved to withdraw his plea.

Therefore, the government defers to the Court on its application.” (Id. at 11-12.)

But its purported adherence to the Agreement was short-lived. In the next

breath, without further input from the Court, the government took the Court’s prior

benign question about whether it had anything it wanted to say about the defendant’s

objection to the enhancement as an invitation to throw the Agreement out the

window: “However, consistent with the terms of the plea agreement, it appears the

Probation Office and the Court is inquiring with respect to the propriety of that two-

level enhancement.” (Id. at 12.)

Pouncing on what it viewed as a loophole in the Agreement, it then argued

explicitly that certain statements by Mr. Kelsey at his withdrawal hearing “were

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perjurious and support[ed] application of the two-level enhancement.” (Id. at 12-13)

(emphasis added).

Defense counsel immediately raised the issue, stating that “the government’s

come pretty close to violating the plea agreement. It sure sounds like they’re

advocating for those two points, and they can’t do that.” (Id. at 13.) The Court

dismissed the issue because “[it had] asked [the prosecutor] what he thought.” (Id.)

Defense counsel responded, “I understand, Your Honor. But if you ask him to violate

the plea agreement, it doesn’t mean he doesn’t violate the plea agreement. (Id.)

The Court ultimately applied the enhancement to Mr. Kelsey’s Guidelines

range, (Doc. 157: Sentencing Tr. at 14-19, 22-23), which the Court gave “substantial

weight” in deciding his sentence, (id. at 113-14).

ARGUMENT

Whether the government breached the plea agreement is a substantial

question of law and fact that, if decided in Mr. Kelsey’s favor by the Sixth Circuit,

will result in a reversal because it will enable him to withdraw his plea.

The Sixth Circuit certainly could decide in Mr. Kelsey’s favor (which is all that

is necessary here) because the government must strictly adhere to the plea

agreements it makes; it breached its agreement here; and its (new) argument that it

can advocate for such adjustments if the Court asks about them contradicts the text

of the agreement, its own prior interpretation of the agreement’s language, and how

appellate courts have construed the same language before.

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 I. The government must strictly adhere to plea agreements.

The Supreme Court has held repeatedly that “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.”

Santobello v. New York, 404 U.S. 257, 262 (1971). This is because a defendant has a

due process right to hold the government to the promise it made that induced him to

plead guilty. Id.; United States v. Warren, 8 F.4th 444, 448 (6th Cir. 2021).

The Sixth Circuit has made clear that courts must treat plea agreements like

contracts, using “traditional principles of contract law” to interpret them and

enforcing them according to their literal terms. Warren, 8 F.4th at 448 (citations

omitted). “But because defendants waive certain fundamental rights when they enter

plea agreements, [courts] construe ambiguities against the government.” Id. (cleaned

up). And specifically with plea agreements, the Sixth Circuit has directed the lower

courts to hold prosecutors to “meticulous standards of performance.” Id. (citing

United States v. Moncivais, 492 F.3d 652, 662 (6th Cir. 2007) (quoting United States

v. Vaval, 404 F.3d 144, 152-53 (2d Cir. 2005)).

“To satisfy these high standards, the government must do more than pay lip

service to its obligations—we forbid ‘not only explicit repudiation of the government’s

assurances’ but also ‘end-runs around them.’” Warren, 8 F.4th at 448 (citation

omitted). As a result, “a line exists between ‘advocacy, on one hand, and providing the

district court with relevant factual information, on the other hand.’” Id. (quoting

Moncivais, 492 F.3d at 664.)

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 “In determining whether a plea agreement has been broken, courts look to

what was reasonably understood by the defendant when he entered his plea of guilty.”

United States v. Ligon, 937 F.3d 714, 718 (6th Cir. 2019) (citation omitted). Here,

again, “[a]mbiguities in a plea agreement must be construed against the

government.” Id. (citing United States v. Fitch, 282 F.3d 364, 367 (6th Cir. 2002)).

Whether the breach affected the sentence doesn’t matter. Indeed, the Supreme

Court has confirmed that “[i]f the government breaches a plea agreement, a

defendant is entitled to relief regardless of whether the district court was ultimately

influenced by the breach and regardless of whether the breach was inadvertent.”

Ligon, 937 F.3d at 719; see also Santobello, 404 at 262-63 (ordering relief even though

the sentencing judge “stated that the prosecutor’s recommendation did not influence

him”); Cohen v. United States, 593 F.2d 766, 772 (6th Cir. 1979) (“[T]he touchstone of

Santobello is whether the prosecution met its commitment and not whether the court

would have adopted the government’s recommendation.”).

II. The government breached Mr. Kelsey’s plea agreement.

Here, there is no question that the plea agreement prohibited the government

from advocating for any additional enhancements not listed in the Agreement,

including an enhancement for obstruction of justice. And it no doubt violated the

Agreement by arguing explicitly that Mr. Kelsey’s conduct was “perjurious and

support[ed] application of the two-level enhancement.” (Ex. 2 at 12-13.)

This is not a close call. The government did not walk the line of responding to

factual inquiries by the Court. It leaped over it by expressly advocating for an

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enhancement. This vitiated a material part of Mr. Kelsey’s consideration for entering

the Agreement and thus violated his constitutional rights.

The case law of the Supreme Court and the Sixth Circuit (and every other

circuit) make this clear. While the government’s breach here was explicit, overtness

is not required. In holding prosecutors to the “meticulous standards” that its

precedent requires, the Sixth Circuit has held that plea agreements can be breached

merely by implication. For example, in Warren, the plea agreement prohibited the

government from suggesting that a variance from the Guidelines range was

appropriate. 8 F.4th at 448. But the government told the court that it likely would

have made a different recommendation if it had known that the defendant had shot

at multiple people, severely injuring one. Id. at 449.

There, the Sixth Circuit held that “this brought a variance forward by

implication—the remark cast doubt on the adequacy of the Guidelines range and

injected reservations about the plea agreement itself.” Id. The Court noted that the

government not only told the Court it probably would not agree with the Guidelines

if given the chance, but that it told the court why it would not have agreed to it by

describing Warren’s conduct. Id. The Court found this “damning,” in part, because

“the government made its remarks after the court generally invited the parties to

comment on whether it should impose a variance” rather than in response to a specific

factual inquiry by the court. Id. It held that the government’s conduct “undoubtedly

constituted advocacy, because the government was not providing any new factual

information to the district court.” Id. (citing United States v. Mason, 410 Fed. Appx.

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881, 889 (6th Cir. 2010)). It thus breached the plea agreement. Id. at 451. The breach

here is even clearer, as the inappropriate advocacy was explicit rather than implied.

The list of similar cases is long. See, e.g., Santobello, 404 U.S. at 258-63

(vacating judgment because prosecutor recommended the maximum one-year

sentence after agreeing to make no sentencing recommendation); United States v.

Barnes, 278 F.3d 644, 647-48 (6th Cir. 2002) (finding reversible error when the

government agreed to recommend that the court sentence the defendant at the low

end of the Guidelines but failed to state his recommendation on the record); United

States v. Foster, 527 F. App’x 406, 408-11 (6th Cir. 2013) (holding that the defendant

was entitled to reversal and a withdrawal of his plea because the government

breached the plea agreement when it argued for a higher offense level); United States

v. Lukse, 286 F.3d 906, 913 (6th Cir. 2002) (“While the government might have

inadvertently failed to determine whether the Appellants provided substantial

assistance during other investigations, . . . an inadvertent failure to perform

obligations under a plea agreement is nonetheless a breach.”); United States v.

Swanberg, 370 F.3d 622, 628-29 (6th Cir. 2004) (finding a violation of the plea

agreement “when the district court unwittingly relied upon the information from

[defendant’s] guilty-plea proffer in imposing the sentence enhancement, and the

prosecutor said nothing to correct this error” despite the plea agreement’s promise

that the proffered information would not be used at sentencing); United States v.

Fitch, 282 F.3d 364, 366-68 (6th Cir. 2002) (holding that the government breached

the plea agreement by arguing for an increase due to defendant’s leadership role,

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despite agreeing that “no other relevant conduct” would be used to increase the

defendant’s base offense level); Ligon, 937 F.3d at 718 (holding that the government

breached the plea agreement by arguing for a sentence within the range of 30-37

months rather than the range of 21-27 months contemplated in the plea agreement).

This case falls squarely within the bounds of these cases in which the Supreme

Court or Sixth Circuit has found that the government breached a plea agreement.

III. The Agreement’s promises were not voided by the Court

asking if there was anything the government wanted to
say.

The context here is damning for the government. Unlike some cases above, the

breach here was premeditated. The government’s filing before the sentencing hearing

was, at best, a forecast of its dubious belief that it could argue for the obstruction

enhancement if the Court inquired about it. (Ex. 1 at 3.) At worst, it was an attempted

invitation for the Court to so inquire, so that it could make an argument it knew it

was not permitted to make. (See id.) In any case, the government’s position that it

was relieved of its obligations under the plea agreement because the Court asked

whether it had anything to say is contrary to the Agreement’s plain language and

would effectively make much of Mr. Kelsey’s consideration for the plea illusory.

The government’s apparent position looks at only one provision of the contract

and assumes it (implicitly) nullifies other provisions. But contracts are read as a

whole. Maggart v. Almany Realtors, Inc., 259 S.W.3d 700, 705 (Tenn. 2008). And they

“should be construed harmoniously to give effect to all provisions and to avoid

creating internal conflicts.” Wilson v. Moore, 929 S.W.2d 367 (Tenn. Ct. App. 1996).

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 Construing the Agreement harmoniously here is easy because there is no

internal conflict in its plain language. It says that the government can make any

“appropriate argument” if the Court inquires. It does not say it can make “any”

argument it wants. The Court must give the word “appropriate” meaning. Lovett v.

Cole, 584 S.W.3d 840, 861 (Tenn. Ct. App. 2019) (“In construing contracts, we are to

give effect to all the language included therein . . . .”). And here, the preceding

paragraph of the Agreement says clearly what is not appropriate: “The parties agree

that no additional upward or downward adjustments are appropriate.” (Ex. 3 at 11

¶ vi.) This means that the government cannot argue for additional upward or

downward adjustments. And if the Court asks the government’s position, it must

stick to its position of what is “appropriate” in the Agreement. This construction gives

meaning to the language of the contract and avoids absurd results.

By contrast, the government reads the requirement that its argument be

“appropriate” out of the Agreement entirely. And the result would be drastic, as it

would allow a routine, benign inquiry by the Court to drastically transform the

Agreement and nullify much of Mr. Kelsey’s consideration for entering it. More

troublingly, it would do so without explicit notice that the relevant provision would

likely create such a dramatic result.

No court would construe the Agreement’s provisions this way. And no court

has. In United States v. Mizell, the government proposed a higher criminal history

category than stipulated in the plea agreement. 671 F. App’x 826, 829 (2d Cir. 2016).

The government argued that it did not breach the plea agreement because it was

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responding to the Court’s inquiry, pointing to the same language in the Agreement

here: “In the event that . . . the [district court] contemplates any Guidelines

adjustments, departures, or calculations different from those stipulated to [here], . . .

the parties reserve the right to answer any inquiries and make all appropriate

arguments concerning the same.” Id. The government argued, in part, that it did not

breach the agreement because of its duty of candor to the district court. Id. at 830.

These arguments did not sway the Second Circuit, which held that the

government breached the plea agreement and that “[t]he government’s duty of candor

does not excuse or remedy a breach . . .” Id. And even though the government

ultimately advocated for a sentence within the Guidelines range set forth in the plea

agreement, the Court held that the defendant “had a ‘reasonable understanding’ that

the Criminal History Category calculation the government presented to the district

court would match the calculations in the plea agreement.” Id. The same language

here compels the same result.

Moreover, in a case before this Court, the same prosecuting office here took a

position directly contrary to the one it takes now. In United States v. McCormick, as

here, the parties’ plea agreement stated that “no additional upward or downward

adjustments, or U.S.S.G.-based departures, are appropriate.” McCormick, No. 3:15-

cr-9, Doc. 37 at 16. And it also included the same language that the government

claims to void such obligations here: “In the event that the Probation Office or the

Court contemplates any U.S.S.G. adjustments, departures, or calculations different

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from those recommended above, the parties reserve the right to answer any inquiries

and to make all appropriate arguments concerning the same.” Id. at 16-17.

There, the Court adjourned the sentencing hearing before imposing a sentence

so that the Probation Office could address various misrepresentations the defendant

made during the hearing. No. 3:15 CR 00009-1, 2017 WL 492506, at *1 (M.D. Tenn.

Feb. 7, 2017). The Probation Office later recommended an obstruction of justice

enhancement, and the Court invited additional briefing from the parties on whether

an obstruction enhancement were appropriate. McCormick, No. 3:15-cr-9, Doc. 64.

Did the prosecutors in McCormick take the same position that the ones here

have taken? Of course not. The government told the district court that “it felt

constrained by the terms of the plea agreement not to recommend an enhancement

for obstruction of justice.” (Ex. 4: United States v. McCormick, United States’ Response

to Second Supplemental Presentence Report (Doc. 67), at 2.) Even though the

defendant himself agreed with the Probation Office that an enhancement for

obstruction was appropriate, the government explained why it could not also agree:

“Specifically, [the government] was concerned that by affirmatively agreeing with the

supplemental PSR that an obstruction enhancement should apply, it could be

considered to be in breach of . . . the plea agreement . . . In light of this constraint,

the government argued that the appropriate consequence for McCormick’s

prevarication at sentencing should be a loss of acceptance points.” (Id.)1

1
The parties in McCormick ultimately came to an agreement that they
would both agree to recommend the obstruction enhancement in return for the
defendant still receiving a reduction for acceptance of responsibility. As part of this

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 The government’s newfound position would upend the standard practice in this

District going forward, particularly because the relevant plea provision could be

triggered in nearly every case. The U.S. Attorney’s Office in this District has included

the language in dispute here in its plea agreements for decades. If the government’s

new attempted end-around proved successful, it would border ineffective assistance

of counsel to allow a defendant to sign away his rights in exchange for such an illusory

promise. And it certainly would be ineffective not to advise him of the very real

possibility that much of his consideration could evaporate if the Court merely asked

if the government had anything to say about a matter.

This is especially true because district courts routinely (if not always) ask for

the parties’ position on the proper Guidelines calculation and are even required to

ask whether they have any objections to the Court’s sentencing determinations.

United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). Thus, the government’s

new position would mean that all it needs to avoid its obligations is for the Probation

Office or the Court to “contemplate” a higher offense level than recommended in the

plea agreement— an occurrence which is also common.

To be sure, the government can respond to the Court’s factual questions. But

that is not what happened here. The Court did not ask any factual questions, and the

government went far beyond offering factual answers—it advocated. See Warren, 8

F.4th at 448. Contrary to the government’s presentencing filing, the Court did not

renegotiated deal, the defendant waived any argument that their new agreement
breached the plea agreement. (Id. at 2.) There was no such renegotiation here.

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ask for the “government’s assessment” of the applicability of the enhancement. It

simply asked whether the government had “anything [it] want[ed] to say” about

defense counsel’s objection to the enhancement. (Ex. 2 at 11.) Under the Agreement,

arguing for the enhancement was not an “appropriate argument” in response to the

Court’s question.

In the end, even if the Court believes the Agreement is ambiguous, it must be

construed defendant’s way. Warren, 8 F.4th at 448 (citations omitted). And because

the defendant’s understanding that the government could not argue for an

obstruction of justice enhancement under the Agreement is (more than) reasonable,

this understanding must carry the day. See, e.g., Fitch, 282 F.3d at 367; Mizell, 671

F. App’x at 830.

CONCLUSION

Because the government has breached the Agreement, Mr. Kelsey is the

aggrieved party and can elect to withdraw from the plea, which would result in a

reversal of his conviction. See, e.g., United States v. Foster, 527 F. App’x 406, 411 (6th

Cir. 2013) (remanding the case with instructions to “afford[] an opportunity to

withdraw his plea bargain based on the government’s breach.”).

For all the reasons above, the Court should grant Mr. Kelsey bail pending

appeal.

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 Respectfully submitted,

J. Alex Little (TN BPR #29858)

Zachary C. Lawson (TN BPR #36092)
BURR & FORMAN LLP
222 Second Avenue South, Suite 2000,
Nashville, TN 37201
Telephone: 615-724-3203
Facsimile: 615-724-3303
alex.little@burr.com
zlawson@burr.com

LCrR12.01 CERTIFICATION

Because this motion raises a purely legal issue (whether Mr. Kelsey’s appeal

will raise a “substantial question” of law), defense counsel has not sought to resolve

the matter by agreement. Nonetheless, Mr. Kelsey’s counsel spoke with the

government’s counsel about this motion and understands that the government

currently intends to oppose it.

CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2023, I electronically filed this document

with the Clerk of the Court using the CM/ECF system, which will serve it upon all

counsel of record.

J. Alex Little

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