Petition for Writ of Certiorari — Sean Jarred Davis, Petitioner v. United States

No. 26-

IN THE

Supreme Court of the United States

SEAN JARRED DAVIS

Petitioner

v.

UNITED STATES OF AMERICA

Respondent

On Petition for Writ of Certiorari from the

United States Court of Appeals for the

Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

DALLAS F. KRATZER III

Counsel of Record

BENNETT Z. TULEJA

STEPTOE & JOHNSON PLLC

41 S. High Street, Suite 2200

Columbus, OH 43215

614.458.9889

dallas.kratzer@steptoe-johnson.com

bennett.tuleja@steptoe-johnson.com

Counsel for Petitioner Sean Jarred Davis

i

QUESTION PRESENTED

The Government charged Sean Jarred Davis in a

four-count superseding indictment that related to the

distribution of heroin and fentanyl. Davis subsequently

pleaded guilty to a charge of conspiring to possess with

intent to distribute and for distributing those illicit

substances. In the resulting plea agreement, Davis

preserved his right to appeal a firearm enhancement

and a leadership enhancement. And the Government

agreed that it would not seek additional enhancements.

Davis’s

pre-sentence

investigation

report

nevertheless included a livelihood enhancement that

Davis and the Government had not discussed before

they struck their deal. At Davis’s sentencing hearing,

the Government said nothing when the district court

adopted the livelihood enhancement, even after the

district court solicited feedback about Davis’s sentence.

Thus, the question presented is whether Due

Process requires district courts to assess if the

Government has committed an implied breach through

the totality of its conduct at sentencing when a criminal

defendant alleges Government breach of a plea

agreement or whether district courts should confine

their assessment to the four corners of a plea

agreement.

ii

PARTIES TO PROCEEDINGS

Petitioner is Sean Jarred Davis, petitioner on review,

was the appellant below.

The United States of America, respondent on review

was the appellee below.

These are the only parties to this proceeding and the

proceedings before the U.S. Court of Appeals for the Fourth

Circuit.

iii

RELATED PROCEEDINGS

U.S. Court of Appeals for the Fourth Circuit:



United States v. Davis, No. 24-4652 (4th Cir. Mar.

27, 2026) (unpublished)

U.S. District Court for the Northern District of West

Virginia:



United States v. Davis, No. 3:22-cr-00003-1 (N.D. W.

Va. Dec. 5, 2024)

iv

TABLE OF CONTENTS

QUESTION PRESENTED ............................................... i

PARTIES TO PROCEEDINGS ...................................... ii

RELATED PROCEEDINGS .......................................... iii

TABLE OF CONTENTS ................................................. iv

TABLE OF AUTHORITIES ............................................ v

PETITION FOR A WRIT OF CERTIORARI ................ 1

OPINIONS BELOW .......................................................... 1

JURISDICTION ................................................................ 1

GUIDELINES PROVISIONS INVOLVED .................... 1

INTRODUCTION .............................................................. 1

STATEMENT OF THE CASE ......................................... 3

REASONS FOR GRANTING THE PETITION ............ 5

I. The circuits are split over the approach used

to determine whether the Government breached

a plea agreement. ......................................................... 5

A.

Four circuits look only to the language of

a plea agreement to determine whether the

Government breached the agreement. ................ 5

B.

Eight circuits review the totality of the

circumstances when reviewing whether the

Government breached a plea agreement. ........... 7

II.

Because plea agreements are so widely

used, this case presents an issue of exceptional

importance. ..................................................................10

III. This case is an excellent vehicle for

resolving the circuit split. ........................................11

CONCLUSION .................................................................12

CERTIFICATE OF SERVICE .......................................13

v

TABLE OF AUTHORITIES

Cases

Lafler v. Cooper,

566 U.S. 156 (2012) ........................................................ 11

Santobello v. New York,

404 U.S. 257 (1971) ........................................................ 10

United States v. Barnes,

278 F.3d 644 (6th Cir. 2002).......................................... 10

United States v. Canada,

960 F.2d 263 (1st Cir. 1992) ............................................ 8

United States v. Casillas,

853 F.3d 215 (5th Cir. 2017)............................................ 6

United States v. Cortés-López,

101 F.4th 120 (1st Cir. 2024)....................................... 2, 8

United States v. Davenport,

775 F.3d 605 (3d Cir. 2015) ............................................. 6

United States v. Davis,

923 F.3d 228 (1st Cir. 2019) ............................................ 9

United States v. Edgell,

914 F.3d 281 (4th Cir. 2019)........................................ 1, 6

United States v. Heredia,

768 F.3d 1220 (9th Cir. 2014)................................ 2, 8, 10

United States v. Honesty,

2026 WL 1729820 (D.C. Cir. June 16, 2026) .................. 8

United States v. Hunter,

835 F.3d 1320 (11th Cir. 2016).................................... 7, 9

United States v. James,

800 F. App’x 290 (5th Cir. 2020) ................................. 2, 6

United States v. Jennings,

127 F.4th 1145 (8th Cir. 2025) .................................... 7, 9

United States v. Karagianis,

142 F.4th 980 (7th Cir. 2025) .......................................... 6

United States v. Ligon,

937 F.3d 714 (6th Cir. 2019)........................................ 7, 9

United States v. Murray,

897 F.3d 298 (D.C. Cir. 2018) ...................................... 8, 9

United States v. Myers,

32 F.3d 411 (9th Cir. 1994).............................................. 8

United States v. Ruiz,

125 F.4th 1342 (10th Cir. 2025) .................................. 7, 9

United States v. Tate,

845 F.3d 571 (4th Cir. 2017)............................................ 2

United States v. Van Thournout,

100 F.3d 590 (8th Cir. 1996).......................................... 11

vi

United States v. Whitney,

673 F.3d 965 (9th Cir. 2012)........................................ 2, 8

United States v. Wilson,

149 F.4th 448 (4th Cir. 2025) ...................................... 2, 6

United States v. Wilson,

920 F.3d 155 (2d Cir. 2019) ......................................... 7, 9

Statutes

21 U.S.C. § 841(b)(1)(C)................................................... 3, 4

21 U.S.C. § 846 .................................................................... 3

28 U.S.C. § 1254(1) .............................................................. 1

Other Authorities

ABA, Plea Bargain Task Force Report (2023) .................. 11

U.S. Dept. of Justice, Bureau of Justice Statistics, Federal

Justice Statistics, 2023 (Mar. 2025) .............................. 11

PETITION FOR A WRIT OF CERTIORARI

Sean Jarred Davis petitions this Court for a writ of

certiorari to review the judgment of the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s unpublished opinion is

electronically available at 2026 WL 851969. The district

court’s final judgment is neither published nor

electronically available.

JURISDICTION

The Fourth Circuit issued its decision on March 27,

2026. This Court’s jurisdiction is thus timely invoked

under 28 U.S.C. § 1254(1).

GUIDELINES PROVISIONS INVOLVED

At the time of Davis’s sentencing, section 2D1.1(b)(16)

of the U.S. Sentencing Guidelines provided for a livelihood

enhancement if the defendant committed his offense as

part of a pattern of criminal conduct engaged in as a

livelihood. Additionally, section 3B1.1(a) of the U.S.

Sentencing Guidelines provided for a leadership

enhancement if the defendant was an organizer or leader

of criminal activity that involved five or more participants

or was otherwise extensive.

INTRODUCTION

The Government must walk a fine line during a

sentencing hearing involving a plea agreement. The

Government owes a duty of candor to the district court, and

at the same time, it must fulfill promises made in the plea

agreement with the criminal defendant. See United States

v. Edgell, 914 F.3d 281, 288 (4th Cir. 2019) (“The

government must carefully balance its duty of candor to the

sentencing court with the sometimes competing—but

2

equally solemn—duty to honor its commitments under a

plea agreement.” (cleaned up)).

But courts of appeals disagree about how to assess

whether the Government failed to fulfill its promises.

While few—like the Fourth Circuit here—confine the

assessment to the four corners of the plea agreement, the

majority also account for the totality of the circumstances

and consider the Government’s conduct and soft influence

at sentencing hearings.

On one side of the circuit split are the courts that assess

a breach of a plea agreement through the lens of contract

law. According to those courts, the Government breaches a

plea agreement only “when a promise it made to induce the

plea goes unfulfilled” and is held “only to those promises”

actually made in the plea agreement. United States v. Tate,

845 F.3d 571, 575 (4th Cir. 2017). And they “will not look

beyond the agreement’s four corners if it is unambiguous.”

See United States v. James, 800 F. App’x 290, 291 (5th Cir.

2020) (cleaned up) (unpublished); see also United States v.

Wilson, 149 F.4th 448, 453–454 (4th Cir. 2025) (reading

“plea agreement’s plain language in its ordinary sense”

(cleaned up)).

On the other side of the circuit split are the courts that

broaden the considerations and give weight to the totality

of the circumstances. Those courts consider whether the

Government’s “overall conduct” is reasonably consistent

with making the promised recommendation. United States

v. Cortés-López, 101 F.4th 120, 128 (1st Cir. 2024) (cleaned

up). As a result, the Government may breach a plea

agreement by “implicitly arguing for a sentence greater

than the terms of the plea agreement specified that the

prosecution would recommend.” United States v. Whitney,

673 F.3d 965, 971 (9th Cir. 2012). Or it may breach an

agreement “if it purports to make the promised

recommendation while winking at the district court to

impliedly request a different outcome.” United States v.

Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014) (cleaned up).

3

This Court should grant Davis’s petition to resolve this

circuit split. Only this Court can clarify whether a court’s

analysis is confined to a plea agreement as written or

whether it must also consider the totality of the

circumstances. By accepting this case for review, this Court

can confirm that the Government cannot avoid its

agreement by sitting idly by as a district court applies

enhancements that the Government itself could not seek.

STATEMENT OF THE CASE

Davis’s Plea Agreement. After being charged with four

counts relating to the distribution of heroin and fentanyl,

Davis pleaded guilty to violations of 21 U.S.C. §§

841(b)(1)(C) and 846 for conspiring to possess with intent

to distribute and for distributing heroin and fentanyl. Pet.

App. 18a. In exchange, the Government agreed that it

would argue only for two sentencing enhancements at

sentencing—a leadership enhancement under section

3B1.1(a) of the Guidelines and a firearm enhancement

under section 2D1.1(b)(1) of the Guidelines. Pet. App. 20a.

The plea agreement further provided that the parties

would “not argue for any additional enhancements or

adjustments.” Id. Davis also reserved the right to appeal

the leadership and firearm enhancements. Pet. App. 21a

(“Notwithstanding the appellate waiver … the parties

retain their appellate rights as to the applicability of

enhancements under U.S.S.G.

§ 3B1.1(a) and

2D1.1(b)(1).”).

Although the Government agreed not to seek additional

enhancements, Davis’s pre-sentence investigation report

included a third sentencing enhancement that was not in

his plea agreement—a livelihood enhancement under

section 2D1.1(b)(16) of the Guidelines.

Davis’s Sentencing Hearing. During the sentencing

hearing, the district court heard arguments from the

Government and Davis. The court decided to apply both the

4

firearm and leadership enhancements, increasing Davis’s

base offense level by 2 points and 4 points, respectively.

Pet. App. 56a. The court also applied the livelihood

enhancement that was not contemplated by the plea

agreement. Id.

After adopting the pre-sentence investigation report’s

recommendations, the district court opened the floor for

any objections from counsel. The Government simply

replied, “Not from the United States.” Pet. App. 57a.

During the hearing, the Government also requested a

sentence of 248 months, which exceeded the agreed-upon

maximum penalty. Pet. App. 105a; see also Pet. App. 18a

(limiting to “imprisonment for a period of not more than

twenty years”). The Government also influenced Davis’s

sentence by adding that Davis was receiving a “significant

break by not being convicted of a count that has” a higher

offense because “his guideline range is 360 to life.” Pet.

App. 105a. It further explained that it was seeking a higher

sentence because “this was a very serious offense.” Pet.

App. 105a–106a.

Based on the offense level of 38 and Davis’s criminal

history, the district court calculated a Guidelines range of

360 months to life. Pet. App. 57a. It further concluded that

it could sentence Davis to no more than 240 months based

on the cap provided by 21 U.S.C. § 841(b)(1)(C). Id.

Accordingly, the court sentenced Davis to 240 months in

prison followed by 3 years of supervised release. Pet. App.

112a.

The Government never explained that it had agreed to

seek only the firearm and leadership enhancements and no

other enhancements. It instead sat idle while the district

court applied the livelihood enhancement.

Davis’s Appeal. Davis’s appeal to the Fourth Circuit

hinged on whether the district court erred in applying the

livelihood and leadership enhancements, considering

Davis’s plea agreement. Among other arguments, Davis

5

raised the issue of whether the Government breached the

plea agreement with the Fourth Circuit.

The Fourth Circuit affirmed. In doing so, the Fourth

Circuit assessed whether the plea agreement was

breached. In its Opinion, the Fourth Circuit assessed that

“plea agreements are grounded in contract law, and as with

any contract” Davis was “entitled to receive the benefit of

his bargain.” Pet. App. 2a. In determining that there was

no breach, the Fourth Circuit only assessed whether the

Government actively argued for the district court’s

application of the livelihood enhancement. Pet. App. 2a–3a.

This petition follows.

REASONS FOR GRANTING THE PETITION

I.

The circuits are split over the approach used

to determine whether the Government

breached a plea agreement.

At present, the circuits are divided when it comes to

assessing the breach of a plea agreement. Four of the

courts of appeals—the Third, Fourth, Fifth, and Seventh

Circuits—have a restrictive approach that focuses on the

language of the plea agreement. But the remaining eight—

the First, Second, Sixth, Eighth, Ninth, Tenth, Eleventh,

and D.C. Circuits—take a different approach. Those courts

consider the totality of the circumstances. Since all twelve

circuits have spoken on this issue, it is now time for this

Court to resolve the split.

A.

Four circuits look only to the language of a

plea agreement to determine whether the

Government breached the agreement.

Here, the Fourth Circuit considered only the plain

language of the plea agreement to assess whether the

Government breached that agreement. And the Third,

Fifth, and Seventh Circuits take the same approach.

6

The Fourth Circuit employs “traditional principles of

contract law” when enforcing a plea agreement. United

States v. Wilson, 149 F.4th 448, 453 (4th Cir. 2025) (cleaned

up). Because “a central tenet of contract law is that no

party is obligated to provide more than is specified in the

agreement itself,” it will hold the Government “only to

those promises that it actually made to the defendant.” Id.

at 454 (cleaned up).

Similarly, the Third Circuit focuses on “the plain

meaning of the plea agreement.” United States v.

Davenport, 775 F.3d 605, 609 (3d Cir. 2015) (cleaned up).

It considers whether the Government’s conduct is

inconsistent with the defendant’s understanding. And

what the defendant “reasonably understood” is “a purely

objective standard governed by the common law of

contract.” Id. (cleaned up).

The Fifth and Seventh Circuits are no different. The

Fifth Circuit applies general principles of contract law and

“generally will not look beyond the agreement’s four

corners if it is unambiguous.” United States v. James, 800

F. App’x. 290, 291 (5th Cir. 2020) (cleaned up)

(unpublished). So too in the Seventh Circuit, where they

“apply ordinary principles of contract law in interpreting

the agreement.” United States v. Karagianis, 142 F.4th

980, 990 (7th Cir. 2025) (cleaned up).

In some instances, these circuits have touched on the

Government’s conduct at sentencing. But they focus on

active advocacy and thus fail to recognize that the

Government may implicitly breach a plea agreement.

United States v. Edgell, 914 F.3d 281, 288 (4th Cir. 2019)

(explaining Government cannot “advocate a position that

contradicts its promises in a plea agreement” (cleaned up));

United States v. Casillas, 853 F.3d 215, 217 (5th Cir. 2017)

(finding breach “when the Government agrees to one thing

in a plea but then actively advocates from something

different at sentencing” (cleaned up)).

7

B.

Eight circuits review the totality of the

circumstances when reviewing whether the

Government breached a plea agreement.

In contrast, every other circuit—the First, Second,

Sixth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits—

use a more holistic, totality of the circumstances approach.

The Second Circuit, in addition to considering contract

law principles, does “not hesitate to scrutinize the

government’s conduct to ensure that it comports with the

highest standard of fairness.” United States v. Wilson, 920

F.3d 155, 162 (2d Cir. 2019) (cleaned up). The Eighth

Circuit similarly accounts for the Government’s conduct;

the Government can “still breach the plea agreement when

its conduct as a whole violates the spirit of the promise.”

United States v. Jennings, 127 F.4th 1145, 1150 (8th Cir.

2025) (cleaned up). The same goes for the Eleventh Circuit,

which applies an objective standard to “decide whether the

government’s actions are inconsistent” with a defendant’s

understanding of the plea agreement, rather than reading

it in a hyper-technical or rigidly literal manner.” United

States v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016)

(cleaned up).

This Sixth Circuit has a more granular analysis. In the

Sixth Circuit, the Government “may not explicitly

repudiate” plea agreements “or engage in an “end-run

around” the promises” in them. United States v. Ligon, 937

F.3d 714, 718–719 (6th Cir. 2019) (cleaned up). The

Government’s performance obligations surrounding plea

agreements require “more than lip service on a prosecutor’s

part.” Id. (cleaned up). The Tenth Circuit includes the

latter sentiment in its analysis, too; the Government “owes

the defendant a duty to pay more than lip service to a plea

agreement.” United States v. Ruiz, 125 F.4th 1342, 1349

(10th Cir. 2025) (cleaned up).

The D.C. Circuit considers the “totality of the

circumstances” and reviews not only for “explicit

8

repudiation of the Government’s assurances” but also “endruns around” them. United States v. Murray, 897 F.3d 298,

309–310 (D.C. Cir. 2018) (cleaned up); see also United

States v. Honesty, 2026 WL 1729820, at *5 (D.C. Cir. June

16, 2026) (cleaned up).

And the First and Ninth Circuits employ perhaps the

most robust analyses. Like the circuits focused on a

contract-based analysis, the Ninth Circuit considers

principles of contract law and holds the Government to “the

literal terms of the agreement.” United States v. Myers, 32

F.3d 411, 413 (9th Cir. 1994) (cleaned up). But the Ninth

Circuit also recognizes that the Government can explicitly

or implicitly break a promise to recommend a particular

disposition. See United States v. Whitney, 673 F.3d 965, 971

(9th Cir. 2012).

The Ninth Circuit also provides criteria for assessing

implicit breaches. For one, the Government may not

“superficially abide by its promise to recommend a

particular sentence” while also making statements “that

serve no practical purpose but to advocate for a harsher”

sentence. United States v. Heredia, 768 F.3d 1220, 1231

(9th Cir. 2014) (cleaned up). Nor can the Government make

“the promised recommendation while winking at the

district court to impliedly request a different outcome.” Id.

(cleaned up). It also cannot make “inflammatory

comments” about a defendant’s past offenses that do not

provide “new information or correct factual inaccuracies.”

Whitney, 673 F.3d at 971 (cleaned up).

The First Circuit takes a similar approach. In no

uncertain terms, the First Circuit “prohibits not only

explicit repudiation of the government’s assurances” but

also “end runs around them.” United States v. CortésLópez, 101 F.4th 120, 128–129 (1st Cir. 2024) (cleaned up).

It also specifies that it is improper for the Government “to

inject material reservations about” plea agreements it has

entered. United States v. Canada, 960 F.2d 263, 270 (1st

Cir. 1992) (cleaned up). Even more, “certain factual

9

omissions, helpful to the defendant, may be an implicit part

of the bargain in a plea agreement.” United States v. Davis,

923 F.3d 228, 237 (1st Cir. 2019) (cleaned up).

The Second, Sixth, Eighth, Tenth, Eleventh, and D.C.

circuits also consider the totality of the circumstances. For

example, the Second Circuit does “not hesitate to scrutinize

the government’s conduct to ensure that it comports with

the highest standard of fairness.” United States v. Wilson,

920 F.3d 155, 162 (2d Cir. 2019) (cleaned up). And the Sixth

Circuit acknowledges that the Government “may not

explicitly repudiate the agreement or engage in an end-run

around the promises contained in the agreement.” United

States v. Ligon, 937 F.3d 714, 718–719 (6th Cir. 2019)

(cleaned up). The Eighth Circuit agrees, providing that

even when the Government “technically adheres to the plea

agreement, it could still breach the plea agreement when

its conduct as a whole violates the spirit of the promise.”

United States v. Jennings, 127 F.4th 1145, 1150 (8th Cir.

2025) (cleaned up).

The Tenth, Eleventh, and D.C. Circuits similarly

include a qualitative assessment of the Government’s

conduct at sentencing hearings when determining whether

the Government breached a plea agreement. United States

v. Ruiz, 125 F.4th 1342, 1349 (10th Cir. 2025) (forbidding

Government from relying on “rigidly literal construction of

the agreement” because it “owes the defendant a duty to

pay more than lip service to a plea agreement” (cleaned

up)); United States v. Hunter, 835 F.3d 1320, 1325 (11th

Cir. 2016) (applying “objective standard to decide whether

the government’s actions are inconsistent with the

defendant’s understanding of a plea agreement, rather

than reading the agreement in a hyper-technical or rigidly

literal manner” (cleaned up)); United States v. Murray, 897

F.3d 298, 309–310 (D.C. Cir. 2018) (prohibiting “not only

explicit repudiation of the government’s assurances,” but

also end-runs around them (cleaned up)).

10

A majority of the circuits consider the conduct of the

Government in addition to the language of a plea

agreement, recognizing that an implicit breach is just as

wrong as an explicit breach of a plea agreement.

Considering the Government’s conduct as part of the

analysis adds a much-needed check to the Government’s

conduct at sentencing hearings. It increases the likelihood

that the Government will fulfill its promises. Granting this

petition to resolve the circuit split would serve to add

consistency in the administration of justice that is

presently absent across the circuits on this issue.

II.

Because plea agreements are so widely used,

this case presents an issue of exceptional

importance.

Plea bargaining is “an essential component of the

administration of justice.” Santobello v. New York, 404 U.S.

257, 260 (1971). The Government must therefore act fairly

and follow through on its promises.

This value is rooted in the due process clause of the

Fifth Amendment. And this Court and other circuits have

recognized the paramount importance of fairness in plea

bargaining on more than one occasion. See Santobello v.

New York, 404 U.S. 257, 261 (1971) (“All of these

considerations presuppose fairness in securing agreement

between an accused and a prosecutor.” (cleaned up)); see

also, e.g., United States v. Barnes, 278 F.3d 644, 648 (6th

Cir. 2002) (“When entering into a plea agreement with the

government, it is essential that fairness on the part of the

prosecutor is presupposed.” (cleaned up)); United States v.

Heredia, 768 F.3d 1220, 1230 (9th Cir. 2014) (“The

integrity of the criminal justice system depends upon the

government’s strict compliance with the terms of plea

agreements into which it freely enters.” (cleaned up)).

Not only is fairness constitutionally important, but it is

also relevant for practical reasons. As this Court has

acknowledged, the “criminal justice system today is for the

11

most part a system of pleas, not a system of trials.” Lafler

v. Cooper, 566 U.S. 156, 169–170 (2012) (cleaned up).

Contemporary statistics support that notion. As of 2023,

nearly 90% of convictions nationwide come from guilty

pleas. See ABA, Plea Bargain Task Force Report, at 6

(2023) (cleaned up). In 2023 alone, 65,482 people were

convicted in federal courts across the country. See U.S.

Dept. of Justice, Bureau of Justice Statistics, Federal

Justice Statistics, 2023, at 13 (Mar. 2025). Consequently,

nearly every individual facing criminal charges—which

can number in the tens of thousands each year—has an

interest in fairness in plea bargaining.

Fairness in plea bargaining also affects public opinion

of the administration of justice. The breach of a plea

agreement not only deprives a defendant of their bargain,

but it also affects “the honor of the government, public

confidence in the fair administration of justice, and the

effective administration of justice in a federal scheme of

government.” United States v. Van Thournout, 100 F.3d

590, 594 (8th Cir. 1996) (cleaned up).

III.

This case is an excellent vehicle for resolving

the circuit split.

Not only does this case concern a circuit split ripe for

resolution and issues of exceptional importance, but it is

also an ideal vehicle for resolving the circuit split for three

reasons. First, Davis preserved his concerns about the

Government’s breach of the plea agreement by raising

them with the Fourth Circuit. Pet. App. 2a–3a. Second, the

Fourth Circuit only looked to the terms of the plea

agreement and whether the Government actively argued

for the livelihood exception, reaffirming its minority

position on the issue. Id. Third, the record is clear that the

Government agreed not to pursue the livelihood

enhancement, as the plea agreement specifically

contemplated only the firearm and leadership

enhancements. Pet. App. 20a. And the record is equally

12

clear that the Government sat in silence as the district

court applied that enhancement. Pet. App. 57a.

This case presents an opportunity for this Court to

ensure fairness in plea bargaining. Here, the Government

did nothing when the district court applied a livelihood

enhancement that the Government knew it could not

request. And the Fourth Circuit approved under its narrow

review that fails to account for an implicit breach of a plea

agreement. This Court can clarify that the Fourth

Circuit—along with the Third, Fifth, and Seventh

Circuits—must consider more than the terms of a plea

agreement and must look at the totality of the

circumstances.

CONCLUSION

This Court should grant the petition for writ of

certiorari and reverse the decision below.

Respectfully submitted,

/s/ Dallas F. Kratzer III

DALLAS F. KRATZER III

Counsel of Record

BENNETT Z. TULEJA

STEPTOE & JOHNSON PLLC

41 S. High Street, Suite 2200

Columbus, OH 43215

614.458.9889

dallas.kratzer@steptoe-johnson.com

bennett.tuleja@steptoe-johnson.com

Counsel for Petitioner Sean Jarred Davis

13

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that on June

25, 2026, the foregoing was served via e-mail upon the

following:

Lara K. Omps-Botteicher

OFFICE OF THE U.S. ATTORNEY

217 West King Street, Suite 400

Martinsburg, West Virginia 25401

Lara.Omps-Botteicher@usdoj.gov

Counsel for Appellee

/s/ Dallas F. Kratzer III

DALLAS F. KRATZER III

Counsel for Petitioner Sean Jarred Davis