United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-50872 FILED February 6, 2024 ____________ Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Shawn Malmquist,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:21-CR-48-12 ______________________________

Before Higginbotham, Higginson, and Duncan, Circuit Judges. Stephen A. Higginson, Circuit Judge: Shawn Malmquist appeals from a guilty-plea conviction and sentence of 151 months of imprisonment and four years of supervised release for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. On appeal, Malmquist contends that the Government breached the clause of the plea agreement in which the Government promised to recommend a three-level acceptance-of-responsibility reduction. Malmquist argues that the Government’s opposition to the reduction at sentencing constituted plain error because there is a reasonable probability that, but for the breach, he would have received a lesser sentence, Case: 22-50872 Document: 00517056991 Page: 2 Date Filed: 02/06/2024

No. 22-50872

and the Government’s improper extraction of benefits from the agreement resulted in a miscarriage of justice. We conclude that the Government’s breach of the plea agreement constituted plain error because the breach affected Malmquist’s substantial rights and called into question the fairness, integrity, and public reputation of the judicial proceedings. Therefore, we VACATE Malmquist’s sentence and REMAND for resentencing. I. In July 2022, Malmquist pleaded guilty, pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B). According to the presentence investigation report (“PSR”), Malmquist was part of an Austin, Texas-based methamphetamine-trafficking organization. He was one of 33 participants charged in this conspiracy and was identified as being a drug distributor. In April 2021, an initial hearing was held to address the Government’s application for pretrial detention. The magistrate judge denied the Government’s request in part and pronounced that Malmquist would be detained only until there was availability in an inpatient residential drug treatment program. In May 2021, Malmquist was released on bond following a detention hearing and scheduled to enter an inpatient residential drug treatment program within approximately one week, subject to mandated conditions of pretrial release. Malmquist successfully completed that residential program in July 2021. On March 31, 2022, however, a pretrial-services officer filed a petition to modify the conditions of pretrial release following Malmquist’s submission of two positive drug tests. When confronted with these resu