Intriguing split Tenth Circuit ruling on plea agreements and sentencing

The Tenth Circuit today in United States vs. Scott, No. 05-6082 (10th Cir. July 31, 2006) (available here) concludes that the government its the plea agreement by making arguments to the district judge in support of a sentencing after failing to object to the presentence report.  Judge Kelly dissents, and starts his opinion (which is longer than the majority opinion) with this paragraph:

The court holds that the government breached its plea agreement with Mr. Scott by discussing two sentencing enhancements after being specifically directed to do so by the district court.  The court reasons that because no new facts were developed after the plea, the government was precluded from arguing any additional positions in favor of enhancements.  Prop. Op. at 7. Because this reasoning is supported by neither the applicable law nor the record, I respectfully dissent.

Because Judge Kelly is the only “active” member of the panel (the judges in the majority are both on senior status), I would not be surprised to see this case get serious en banc consideration.