Was it unconstitutional and improper for the Fifth Circuit to rely on the government's newly argued application of an undefined contract provision to affirm Petitioners' judgments, absent exceptional circumstances or a risk of injustice resulting from a failure to reach the issue?

QUESTION PRESENTED This appeal arose from a sentencing dispute related to a cooperation agreement between the government and Petitioners. The government argued below—and the district court agreed—that Petitioners breached the agreement by omitting certain information from an initial proffer meeting, thereby allowing the district court to use that information to enhance their U.S. Sentencing Guidelines range. Petitioners appealed that ruling, arguing that the government failed to present evidence of any breach and, even if it had, the purported breach was immaterial and cured through their subsequent cooperation. On appeal, the government abandoned its breach theory and argued for the first time that the information fell outside the scope of the agreement’s protections entirely. This newly espoused reading not only was never asserted in the district court, it also directly contradicted the reading argued by the government and adopted by the sentencing judge below. What is more, the government’s new argument turned on the meaning of an undefined “crime of violence” term in the contract. Nonetheless, the Fifth Circuit affirmed Petitioners’ sentences based on this new theory—taking it further by relying on its own “crime of violence” definition that neither party argued. The question presented is: Was it unconstitutional and improper for the Fifth Circuit to rely on the government’s newly argued application of an undefined contract provision to affirm Petitioners’ judgments, absent exceptional circumstances or a risk of injustice resulting from a failure to reach the issue? ii