UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-1327 ___________

UNITED STATES OF AMERICA

v.

LUIS DAVIS, Appellant ____________

On Appeal from the District Court of the Virgin Islands (D.C. No. 1-17-cr-00038-001) District Judge: Honorable Wilma A. Lewis ____________

Argued on December 13, 2023

Before: HARDIMAN, KRAUSE, and RENDELL, Circuit Judges.

(Filed: June 27, 2024) Matthew A. Campbell [Argued] Office of Federal Public Defender District of the Virgin Islands 1336 Beltjen Road Suite 202, Tunick Building St. Thomas, VI 00802 Counsel for Appellant Daniel H. Huston Office of United States Attorney 1108 King Street, Suite 201 Christiansted, VI 00820 Delia L. Smith Adam Sleeper [Argued] Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802 Counsel for Appellee

____________

OPINION OF THE COURT ____________

HARDIMAN, Circuit Judge.

Luis Davis appeals the District Court’s judgment sentencing him to 102 months’ imprisonment. He claims the Government breached its promise in a plea agreement to recommend a sentence at the “low end” of his Sentencing Guidelines range (87 to 108 months). We agree that the Government breached the agreement when it emphasized the heinous nature of Davis’s crimes and the harm suffered by the

2 victims. In doing so, the Government effectively advocated for a sentence higher than the one it promised to recommend. So we will vacate and remand for resentencing.

I

Stephen O’Dea and Kathryn Duncan were asleep at home on the island of Saint Croix in September 2017 when they awoke to three intruders: Luis Davis, Joel Rivera, and Chriss Cepeda. The masked men were no strangers to the property—at least one of them had helped O’Dea prepare the estate for a hurricane several weeks prior. The trio punched O’Dea in the face and ripped the bedsheets off Duncan. They also slapped Duncan, threatened to rape her, and put a gun to her head—telling her it “would be blown off” if she didn’t tell them where to find the couple’s money. App. 100. After O’Dea revealed that his wallet was at a nearby farm, the culprits forced the couple into O’Dea’s truck at gunpoint. While continuing to punch O’Dea and menace Duncan, they drove to the farm where they seized O’Dea’s wallet and cash. They then forced the victims to their knees and stripped them naked before driving off in O’Dea’s jeep. Stranded, the couple ran to a neighbor’s house for help.

Police tracked the perpetrators to a gas station, where they recovered Duncan’s stolen iPad along with two loaded handguns and ammunition stashed in a backpack. A grand jury later indicted Davis on twelve counts, charging him with violations of Virgin Islands and federal law.

Davis signed a written agreement pleading guilty to three counts: brandishing a firearm during a violent crime in violation of 18 U.S.C. §§ 2(a) and 924(c)(1)(A)(ii), carjacking in violation of 18 U.S.C. §§ 2(a) and 2119(1), and being a felon

3 in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In exchange, the Government agreed to dismiss the remaining counts and to recommend the seven-year statutory minimum sentence for brandishing the firearm. Central to this appeal, the Government also agreed to recommend “a sentence at the low end of the applicable guideline range,” as “determined by the Court,” for the grouped carjacking and felon-in-possession counts. App. 83. The parties