enhancement for repeat sex offenses against minors did not apply and the correct Guidelines range was therefore still 140 to 175 months, but requesting an above-Guidelines sentence of 240 months. The district court found that the enhancement applied, and Dean does not contest that it applies by its terms. The district court sentenced Dean below the resulting Guidelines range to 216 months. The government did not breach its plea agreement by arguing for an above-Guidelines sentence; the plea agreement explicitly allowed the government to do so. Probation, not the government, argued that the § 4B1.5 enhancement should apply, and the government told the district court its position was that the § 4B1.5 enhancement did not apply. See United States v. Riera, 298 F.3d 128, 134 (2d Cir. 2002) (<HOLDING>). The government’s brief argued for an
holding that if a plea agreement is breached the district court may either grant specific performance or allow the defendant to withdraw the plea holding that the governments representations to the court that it was not seeking an upward departure suggested it had not breached the plea agreement holding that district courts failure to hold evidentiary hearing to ascertain whether defendant breached plea agreement was harmless when it was clear defendant breached agreement holding that a federal habeas court may grant specific performance of a plea agreement in the face of evidence that the state has breached the terms of such an agreement holding that district courts error was not harmless because the court relied on an improper factor in imposing an upward departure