556 U.S. 129

JAMES BENJAMIN PUCKETT, PETITIONER v.UNITED STATES

on writ of certiorari to the united states courtof appeals for the fifth circuit

Justice Scalia delivered the opinion of the Court.

The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.

I

In July 2002, James Puckett was indicted by a grand jury in the Northern District of Texas on one count of armed bank robbery, 18 U.S.C. 2113(a), (d), and one count of using a firearm during and in relation to a crime of violence, 924(c)(1). He negotiated a plea agreement with the Government, which was filed with the District Court on September 3, 2003. As part of that deal, Puckett agreed to plead guilty to both counts, waive his trial rights, and cooperate with the Government by being truthful regarding his participation in criminal activities. App. 51a53a. In exchange, the Government agreed to the following two terms:

8. The government agrees that Puckett has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction in his offense level.

9. The government also agrees to request that Pucketts sentence be placed at the lowest end of the guideline level deemed applicable by the Court. Id., at 54a.

To satisfy the first of these obligations, the Government filed a motion in the District Court pursuant to 3E1.1 of the United States Sentencing Commissions Guidelines Manual (Nov. 2003) (USSG). That provision directs sentencing courts to decrease a defendants offense level under the Guidelines by two levels if he clearly demonstrates acceptance of responsibility for his offense, and by a third level upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty. Two weeks later, the District Court held a plea colloquy, see Fed. Rule Crim. Proc. 11(b), and accepted Pucketts plea.

Because of delays due to health problems experienced by Puckett, sentencing did not take place for almost three years. In the interim, Puckett assisted another man in a scheme to defraud the Postal Service, and confessed that assistance (under questioning) to a probation officer. The officer prepared an addendum to Pucketts presentence report recommending that he receive no 3E1.1 reduction for acceptance of responsibility, on the theory that true acceptance of responsibility requires termination of criminal conduct. See USSG 3E1.1, comment., n. 1(b).

When sentencing finally did take place on May 4, 2006, Pucketts counsel objected to the addendum, pointing out that the Government had filed a motion requesting that the full three-level reduction in offense level be granted. The District Judge turned to the prosecutor, who responded that the motion was filed a long time ago, App. 79a, before Puckett had engaged in the additional criminal behavior. She made clear that the Government opposed any reduction in Pucketts offense level for acceptance of responsibility. The probation officer then added his view that under the Guidelines, a reduction would be improper.

After hearing these submissions, the District Judge concluded that even assuming he had the discretion to grant the reduction, he would not do so. [I]ts so rare [as] to be unknown around here where one has committed a crime subsequent to the crime for which they appear before the court and for them even then to get the three points. Id., at 80a81a. He agreed, however, to follow the recommendation that the Government made, pursuant to its commitment in the plea agreement, that Puckett be sentenced at the low end of the applicable Guidelines range, which turned out to be 262 months in prison for the armed bank robbery and a mandatory minimum consecutive term of 84 months for the firearm crime. Had the District Court granted the three-level reduction for acceptance of responsibility, the bottom of the Guidelines range would have been 188 months for the robbery; the firearm sentence would not have been affected.

Importantly, at no time during the exchange did Pucketts counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Pucketts plea on grounds that the Government had broken its sentencing promises.

On appeal to the United States Court of Appeals for the Fifth Circuit, Puckett did argue, inter alia,that the Government violated the plea agreement at sentencing. The Government conceded that by objecting to the reduction for acceptance of responsibility, it had violated the obligation set forth in paragraph 8 of the agreement, but maintained that Puckett had forfeited this claim by failing to raise it in the District Court. The Court of Appeals agreed, and applied the plain-error standard that Rule 52(b) makes applicable to unpreserved claims of error. 505 F.3d 377, 384 (2007). It held that although error had occurred and was obvious, Puckett had not satisfied the third prong of the plain-error analysis by demonstrating that the error affected his substantial rights, i.e., caused him prejudice. Id., at 386. Especially in light of the District Judges statement that granting a reduction when the defendant had continued to engage in criminal conduct was so rare [as] to be unknown, Puckett could not show that the Governments breach had affected his ultimate sentence. The Court of Appeals accordingly affirmed the conviction and sentence. Id., at 388.

We granted certiorari, 554 U.S. ___ (2008), to consider a question that has divided the Federal Courts of Appeals: whether Rule 52(b)s plain-error test applies to a forfeited claim, like Pucketts, that the Government failed to meet its obligations under a plea agreement. See Inre Sealed Case, 356 F. 3d 313, 315318 (CADC 2004) (discussing conflict among the Circuits). Concluding that Rule 52(b) does apply and in the usual fashion, we now affirm.

II

If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited. No procedural principle is more familiar to this Court than that a . . . right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. Yakus v. United States, 321 U.S. 414, 444 (1944) .

If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal. United States v. Padilla, 415 F.3d 211, 224 (CA1 2005) (en banc) (Boudin, C. J., concurring).

This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from sandbagging the courtremaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor. Cf. Wainwright v. Sykes, 433 U.S. 72, 89 (1977) ; see also United States v. Vonn, 535 U.S. 55, 72 (2002) .

In federal criminal cases, Rule 51(b) tells parties how to preserve claims of error: by informing the courtwhen the court ruling or order is made or soughtof the action the party wishes the court to take, or the partys objection to the courts action and the grounds for that objection. Failure to abide by this contemporaneous-objection rule ordinarily precludes the raising on appeal of the unpreserved claim of trial error. See United States v. Young, 470 U.S. 1, and n. 12 (1985). Rule 52(b), however, recognizes a limited exception to that preclusion. The Rule provides, in full: A plain error that affects substantial rights may be considered even though it was not brought to the courts attention.

We explained in United States v. Olano, 507 U.S. 725 (1993) , that Rule 52(b) reviewso-called plain-error reviewinvolves four steps, or prongs. First, there must be an error or defectsome sort of [d]eviation from a legal rulethat has not been intentionally relinquished or abandoned, i.e., affirmatively waived,by the appellant. Id., at 732733. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. See id., at 734. Third, the error must have affected the appellants substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Ibid. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the errordiscretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Id., at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936) ). Meeting all four prongs is difficult, as it should be. United States v. Dominguez Benitez, 542 U.S. 74, 83, n. 9 (2004) .

We have repeatedly cautioned that [a]ny unwarranted extension of the authority granted by Rule 52(b) would disturb the careful balance it strikes between judicial efficiency and the redress of injustice, see Young, supra, at 15; and that the creation of an unjustified exception to the Rule would be [e]ven less appropriate, Johnson v. United States, 520 U.S. 461, 466 (1997) . The real question in this case is not whether plain-error review applies when a defendant fails to preserve a claim that the Government defaulted on its plea-agreement obligations, but rather what conceivable reason exists for disregarding its evident application. Such a breach is undoubtedly a violation of the defendants rights, see Santobello v. New York, 404 U.S. 257, 262 (1971) , but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others.

III

Puckett puts forward several possible reasons why plain-error review should not apply in the present context. We understand him to be making effectively four distinct arguments: two doctrinal, two practical. We consider each set in turn.

A

Pucketts primary precedent-based argument proceeds as follows: When the Government breaks a promise that was made to a defendant in the course of securing a guilty plea, the knowing and voluntary character of that plea retroactively vanishes, because (as it turns out) the defendant was not aware of its true consequences. Since guilty pleas must be knowing and voluntary to be valid, McCarthy v. United States, 394 U.S. 459, 466 (1969) , the guilty plea is thus void, along with the defendants corresponding waiver of his right to trial. And because, under this Courts precedents, a waiver of the right to trial must be made by the defendant personally, see Taylor v. Illinois, 484 U.S. 400, and n. 24 (1988), no action by counsel alone could resurrect the voided waiver. Therefore, Puckett concludes, counsels failure timely to object to a Government breach can have no effect on the analysis, and the court of appeals must always correct the error.

This elaborate analysis suffers from at least two defects. First, there is nothing to support the proposition that the Governments breach of a plea agreement retroactively causes the defendants agreement to have been unknowing or involuntary. Any more than there is anything to support the proposition that a mere breach of contract retroactively causes the other partys promise to have been coerced or induced by fraud. Although the analogy may not hold in all respects, plea bargains are essentially contracts. See Mabry v. Johnson, 467 U.S. 504, 508 (1984) . When the consideration for a contract failsthat is, when one of the exchanged promises is not keptwe do not say that the voluntary bilateral consent to the contract never existed, so that it is automatically and utterly void; we say that the contract was broken. See 23 R. Lord, Williston on Contracts 63.1 (4th ed. 2002) (hereinafter Williston). The party injured by the breach will generally be entitled to some remedy, which might include the right to rescind the contract entirely, see 26 id., 68.1 (4th ed. 2003); but that is not the same thing as saying the contract was never validly concluded.

So too here. When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission of the agreement, allowing him to take back the consideration he has furnished, i.e., to withdraw his plea. But rescission is not the only possible remedy; in Santobello we allowed for a resentencing at which the Government would fully comply with the agreementin effect, specific performance of the contract. 404 U.S., at 263. In any case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain.¹

Moreover, and perhaps more fundamentally, Pucketts argument confuses the concepts of waiver and forfeiture. Nobody contends that Pucketts counsel has waivedthat is, intentionally relinquished or abandoned, Olano, 507 U.S., at 733Pucketts right to seek relief from the Governments breach. (If he had, there would be no error at all and plain-error analysis would add nothing.) The objection is rather that Puckett forfeited the claim of error through his counsels failure to raise the argument in the District Court. This Courts precedents requiring that certain waivers be personal, knowing, and voluntary are thus simply irrelevant. Those holdings determine whether error occurred, but say nothing about the proper standard of review when the claim of error is not preserved. The question presented by this case assumes error; only the standard of review is in dispute.

Pucketts second doctrinal attack rests on our decision in Santobello. In that case, the State had promised in a plea deal that it would make no sentencing recommendation, but the prosecutor (apparently unaware of that commitment) asked the state trial court to impose the maximum penalty of one year. Defense counsel immediately objected. 404 U.S., at 259. The trial judge proceeded anyway to impose the 1-year sentence, reassuring Santobello that the prosecutors recommendation did not affect his decision. Id., at 259260. This Court vacated the conviction and remanded the case because the interests of justice would thus be best served. Id.,at 262.

Puckett maintains that if the interests of justice required a remand in Santobello even though the breach there was likely harmless, those same interests call for a remand whenever the Government reneges on a plea bargain, forfeiture or not. We do not agree. Whether an error can be found harmless is simply a different question from whether it can be subjected to plain-error review. Santobello (given that the error in that case was preserved) necessarily addressed only the former.

B

Doctrine and precedent aside, Puckett argues that practical considerations counsel against subjecting plea-breach claims to the rule of plain-error review. Specifically, he contends that no purpose would be served by applying the rule; and that plea breaches will always satisfy its four prongs, making its application superfluous. Accepting, arguendo (and dubitante),that policy concerns can ever authorize a departure from the Federal Rules, both arguments are wrong.

Puckett suggests that once the prosecution has broken its agreement, e.g., by requesting a higher sentence than agreed upon, it is too late to unring the bell even if an objection is made: The district judge has already heard the request, and under Santobello it does not matter if he was influenced by it. So why demand the futile objection?

For one thing, requiring the objection means the defendant cannot game the system, wait[ing] to see if the sentence later str[ikes] him as satisfactory, Vonn, 535 U.S., at 73, and then seeking a second bite at the apple by raising the claim. For another, the breach itself will not always be conceded.² In such a case, the district court if apprised of the claim will be in a position to adjudicate the matter in the first instance, creating a factual record and facilitating appellate review. Thirdly, some breaches may be curable upon timely objectionfor example, where the prosecution simply forgot its commitment and is willing to adhere to the agreement. And finally, if the breach is established but cannot be cured, the district court can grant an immediate remedy (e.g., withdrawal of the plea or resentencing before a different judge) and thus avoid the delay and expense of a full appeal.

Puckett also contends that plain-error review does no substantive work in the context of the Governments breach of a plea agreement. Brief for Petitioner 22. He claims that the third prong, the prejudice prong, has no application, since plea-breach claims fall within a special category of forfeited errors that can be corrected regardless of their effect on the outcome. Olano, supra, at 735.

This Court has several times declined to resolve whether structural errorsthose that affect the framework within which the trial proceeds, Arizona v. Fulminante, 499 U.S. 279, 310 (1991) automatically satisfy the third prong of the plain-error test. Olano, supra, at 735; Johnson, 520 U.S., at 469; United States v. Cotton, 535 U.S. 625, 632 (2002) . Once again we need not answer that question, because breach of a plea deal is not a structural error as we have used that term. We have never described it as such, see Johnson, supra, at 468469, and it shares no common features with errors we have held structural. A plea breach does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence, Neder v. United States, 527 U.S. 1, 9 (1999) (emphasis deleted); it does not defy analysis by harmless-error standards by affecting the entire adjudicatory framework, Fulminante, supra, at 309; and the difficulty of assessing the effect of the error, United States v. Gonzalez-Lopez, 548 U.S. 140, 149, n. 4 (2006) , is no greater with respect to plea breaches at sentencing than with respect to other procedural errors at sentencing, which are routinely subject to harmlessness review, see, e.g., United States v. Teague, 469 F.3d 205, 209210 (CA1 2006).

Santobello did hold that automatic reversal is warranted when objection to the Governments breach of a plea agreement has been preserved,³ but that holding rested not upon the premise that plea-breach errors are (like structural errors) somehow not susceptible, or not amenable,to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargainingan essential and highly desirable part of the criminal process, 404 U.S., at 261262. But the rule of contemporaneous objection is equally essential and desirable, and when the two collide we see no need to relieve the defendant of his usual burden of showing prejudice. See Olano, 507 U.S., at 734.

The defendant whose plea agreement has been broken by the Government will not always be able to show prejudice, either because he obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request) or because he likely would not have obtained those benefits in any event (as is seemingly the case here).⁴

On the dissents view, a defendant in Pucketts position has always suffered an impairment of his substantial rights under Olanos third prong, because he has been convicted in the absence of trial or compliance with the terms of the plea agreement dispensing with the Governments obligation to prove its case. Post, at 1 (opinion of Souter, J.). But that is simply an ipse dixit recasting the conceded errorbreach of the plea agreementas the effect on substantial rights. Any trial error can be said to impair substantial rights if the harm is defined as being convicted at a trial tainted with [fill-in-the-blank] error. Nor does the fact that there is a protected liberty interest at stake render this case different, see post, at 3. That interest is always at stake in criminal cases. Eliminating the third plain-error prong through semantics makes a nullity of Olanos instruction that a defendant normally must make a specific showing of prejudice in order to obtain relief, 507 U.S., at 735.

Puckett contends that the fourth prong of plain-error review likewise has no application because every breach of a plea agreement will constitute a miscarriage of justice. That is not so. The fourth prong is meant to be applied on a case-specific and fact-intensive basis. We have emphasized that a per se approach to plain-error review is flawed. Young, 470 U.S., at 17, n.14. It is true enough that when the Government reneges on a plea deal, the integrity of the system may be called into question, but there may well be countervailing factors in particular cases. Puckett is again a good example: Given that he obviously did not cease his life of crime, receipt of a sentencing reduction for acceptance of responsibility would have been so ludicrous as itself to compromise the public reputation of judicial proceedings.

Of course the second prong of plain-error review also will often have some bite in plea-agreement cases. Not all breaches will be clear or obvious. Plea agreements are not always models of draftsmanship, so the scope of the Governments commitments will on occasion be open to doubt. Moreover, the Government will often have a colorable (albeit ultimately inadequate) excuse for its nonperformance. See n. 2, supra.

***

Application of plain-error review in the present context is consistent with our cases, serves worthy purposes, has meaningful effects, and is in any event compelled by the Federal Rules. While we recognize that the Governments breach of a plea agreement is a serious matter, the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure. Johnson, 520 U.S., at 466.

The judgment of the Court of Appeals is

Affirmed.

Notes

1Puckett points out that in Brady v. United States, 397 U.S. 742 (1970) , we quoted approvingly the Fifth Circuits statement that guilty pleas must stand unless induced by misrepresentation (including unfulfilled or unfulfillable promises), id., at 755 (quoting Shelton v. United States, 246 F.2d 571, 572, n.2 (CA5 1957) (en banc); internal quotation marks omitted). But it is hornbook law that misrepresentation requires an intent at the time of contracting not to perform. 26 Williston 69.11. It is more difficult to explain the other precedent relied upon by Puckettour suggestion in Mabry v. Johnson, 467 U.S. 504, 509 (1984) , that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand. That statement, like the one in Brady, was dictum. Its conclusion that the conviction cannot stand is only sometimes true (if that is the remedy the court prescribes for the breach). And even when the conviction is overturned, the reason is not that the guilty plea was unknowing or involuntary. We disavow any aspect of the Mabry dictum that contradicts our holding today.

2Indeed, in this case the Government might well have argued that it was excused from its obligation to assert demonstrated acceptance of responsibility because Pucketts ongoing criminal conduct hindered performance. See 13 Williston 39.3 (4th ed. 2000). That argument might have convinced us had it been pressed, but the Government conceded the breach, and we analyze the case as it comes to us.

3We need not confront today the question whether Santobellos automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder.

4Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) . When the rights acquired by the defendant relate to sentencing, the outcome he must show to have been affected is his sentence.