[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 14427

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus CHRISTOPHER BUONOCORE,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20

- cr

- 00402

- TPB

- JSS

- 1

____________________ USCA11 Case: 21-14427 Date Filed: 08/08/2022 Page: 1 of 62 Opinion of the Court 21

- 14427

Before L UCK , L AGOA , and B LACK , Circuit Judges.

PER CURIAM:Christopher Buonocore, a counseled federal prisoner, appeals his 180

- month total sentence

. He moves to summarily reverse the district court and to stay the briefing schedule. He asserts he is entitled to relief because the G overnment did not recommend a total sentence within the g uideline s range, as agreed to in the written plea agreement

. T he G overnment acknowledge s it breach ed the plea agreement , agrees with Buonocore that the case should be remanded, and recommends that we remand t o the district court to a different judge for resentencing.

I. BACKGROUND
In 2020, Buonocore pleaded guilty pursuant to a written plea agreement to six counts of cyberstalking, 18 U.S.C. §§ 2261(b), 2261A(2)(B)

. In relevant part, the written plea agreement provided that, pursuant to Fed eral R ule of Crim inal P rocedure 11(c)(1)( B ), the G overnment “will recommend to the C ourt that the defendant be sentenced within the defendant’s applicable guideline s range as determ ined by the C ourt pursuant to the United States Sentencing Guidelines, as adjusted by any departure the United States has agreed to recommend in this plea agreement.” The district court ultimately accepted Buonocore’s plea and found him guilty.

Buonocore’ s presentencing investigation report calculated his original g uideline s imprisonment range to be 108 to 135 USCA11 Case: 21-14427 Date Filed: 08/08/2022 Page: 2 of 621

- 14427 Opinion of the Court 3
months’ imprisonment. At sentencing, the district court found his guideline s range was only 51 to 63 months’ imprisonment. The
G overnment asked th e court to vary upward and sentence him within his original guideline s range of 108 to 135 months’ imprisonment. The Government later verified that it was asking for a
135

- month total sentence.
The district court , however, varied upward beyond the total

t erm sought by the G overnment, and sentenced Buonocore to atotal of 180 months’ imprisonment, followed by three years of supervised release. A t no point in the proceedings did either the G overnment or Buonocore mention that the plea agreement required the G overnment to recommend a total sentence within the guideline s range as calculated by the district court

. Prior to briefing in this appeal
, Buonocore filed the present
motion for summary reversal, arguing he had entered into a valid plea agreement that the G overnment did not follow when it recommend ed he be sentenced outside the announced guideline s range of 51 to 63 months’ imprisonment

. II. DISCUSSION “[ W ] hen a plea rests in any significant degree on a promise or agreement of the prosecutor
, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. ” Santobello v. New York , 404 U.S. 257, 262 (1971). “ A material promise by the gover nment , which induces a defendant to plead guilty
, binds the government to that promise, ” meaning “ the USCA11 Case: 21-14427 Date Filed: 08/08/2022 Page: 3 of 64 Opinion of the Court 21

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government breaches a plea agreement when it fails to perform the promises on which the plea was based. ” United States v. Hunter
, 835 F.3d 1320, 1324 (11 th Cir. 2016) (quotation marks omitted)

. A defendant can bargain not just for the dismissal of charges, but also for a particular sentencing recommendation by the prosecution. See Santobello , 404 U.S. at 262. After the government concedes that such a pr omise was made, it is unlikely it could argue that its inadvertent breach was immaterial. See id.

W e grant Buonocore’s motion , vacate his total sentence,and remand the case back to the district court for resentencing before a different judge. 1 Buonocore has shown plain error. See United States v. Hedges, 175 F.3d 1312, 1317 (11th Cir. 1999) (reviewing an issue not preserved in a criminal case for plain error)

. The G overnment agreed to recommend a total sentence within the sentencing guideline s range in the plea agreement. The district court announced a guideline s imprisonment range of 51 to 63 months. The G overnment then recommended a 135

- month total sentence, which was outside the announced guideline s range. Thus, there was an error that is plain. See U nited States v. De La

1 “[ T ] here are two remedies available when a plea agreement is breached. ”
Hunter , 835 F.3d at 1329 (quotation marks omitted). The first is to “ remand the case for resentencing according to the terms of the agreement before a different judge. ” Id. The second is to “ permit the withdrawal of the guilty plea. ” Id. We have the d iscretion to choose between these two remedies, but withdrawal of the plea is the less favored option. Id. USCA11 Case: 21-14427 Date Filed: 08/08/2022 Page: 4 of 621

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Garza , 516 F.3d 1266, 1269 (11th Cir. 2008) (stating, “[ u ] nder plain error review, there must be (1) an error, (2) that is plain , (3) thataffects the defendant's substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings ” ). As for substantial rights, part of the plea agreement included recommending a total sentence wi thin the guidelines and the G overnment was bound by that promise

. By recommending a sentence over the guideline s range , the Government materially breached a promise that must be fulfilled, impacting Buonocore’s rights. See Santobello , 404 U.S. at 262. As the G overnment breached the agreement, the interests of justice and recognition of the duties of the prosecution in relation to promises made duringthe plea negotiation also justify remanding the case back to the district court, in front of a different judge, for resentencing. Id. at 262

– 63 ( concluding the interests of justice and the recognition of theduties of the prosecution in relation to promises made in the negotiation of guilty pleas can serve as grounds to remand cases in t he case of a government breach of an agreement) ; s ee also Hunter , 835 F.3d at 1329. Therefore, because Buonocore’s position is clearly correct as a matter of law, we GRANT his motion for summary reversal and DENY as moot his motion to stay the briefing s chedule. See Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. USCA11 Case: 21-14427 Date Filed: 08/08/2022 Page: 5 of 66 Opinion of the Court 21

- 14427

1969) 2 (explaining s ummary disposition is appropriate, in part, where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case” ).

2 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the form er Fifth Circuit handed down prior to close of business on September 30, 1981. USCA11 Case: 21-14427 Date Filed: 08/08/2022 Page: 6 of 6