Sentencing; Plea agreement under FedRCrimP 11(c)(1)(B); Whether the government breached the agreement; Failure to object to the “reckless endangerment” enhancement; Failure to object to the presentence report’s (PSR) calculation of the offense level; Procedural & substantive reasonableness; 18 USC § 3553(a)

The court held that the government did not breach the parties’ plea agreement by failing to object to the PSR’s recommendation of a reckless endangerment sentencing enhancement or to the PSR’s higher offense level. The agreement “did not obligate the government to object to an enhancement the parties had not taken off the table” and it was not obligated to object to the corrected offense level in the PSR. The court also rejected defendant-Messersmith’s claim that his sentence was procedurally and substantively unreasonable. He pled guilty to FIP. His plea agreement provided for a base level of 20. However, the PSR contained a base offense level of 24 due to a second prior controlled substance felony conviction not contemplated during plea negotiations. The parties also agreed to certain enhancements but not the two-level one for reckless endangerment the PSR added. They acknowledged that the PSR was the accurate measure, and the district court adopted its Guidelines range of 110 to 120 months. It considered the § 3553(a) factors and sentenced him to 110 months. Messersmith argued that the government breached the plea agreement by not objecting to the reckless endangerment enhancement. But the court noted that the agreement “expressly allowed either party to ‘object to or argue in favor of other calculations.’ And where a plea agreement expressly preserves the government’s ability to argue in favor of other calculations, the government does not breach the agreement by exercising that reserved authority—or, in this case, by not objecting when the PSR essentially does the same.” The government also did not breach the agreement by agreeing with the PSR's calculation of the base offense level. It “did not recommend this higher base offense level; instead, it joined Messersmith in urging application of a total offense level of 21.” Even if the agreement had been breached, the “district court was independently obligated to calculate the Guidelines correctly based on the two qualifying felonies identified in” the PSR. Messersmith’s sentence was at the bottom of the Guideline’s range, and he could not establish any violated “reasonable expectation.” As to his reasonableness challenge, there was no procedural error where “the district court listened to Messersmith’s arguments and accounted for his unique history and circumstances when sentencing him.” Further, it “imposed a reasonable, individualized sentence” after considering the § 3553(a) factors. Affirmed.