2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

12-20-2010 

# U S A v . Le r o y R o e buck

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 09-4163

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 09

- 4163

_____________ UNITED STATES OF AMERICA

v. LEROY ROEBUCK , Appe llant

____________ On Appeal from the District Court of the U nited States Virgin Islands District Court No. 3

- 0 9

- cr - 000 10

- 001 District Judge: The Honorable Curtis V. Gomez Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 1 6 , 2010 Before : McK EE , Chief Judge , FUENTES and SMITH, Circuit Judges (Filed: December 20, 2010 )

_____________________ OPINION

_____________________ SMITH, Circuit Judge. Leroy Roebuck pled guilty to possessing marijuan a with intent to distribute on July 15, 2009. Under the terms of the plea agreement, the United States agreed to dismiss part of the indictment, to file a U.S.S.G. § 5K1.1 motion for downward departure at sentencing, and to specifically recommend a senten ce of probation. At the sentencing2 

### hearing, however, the prosecutor did not recommend probation, and instead voiced a recommendation of zero to six months’ imprisonment. The D istrict C ourt imposed a sentence of six months’ imprisonment, whereupon defense counsel reminded the prosecutor of his commitment to recommend probation. The parties and the court conferred at a sidebar, where the government acknowledged that it had inadvertently reneged on part of its share of the plea bargain. The court did not a lter its sentence, but instead instructed the parties to file appropriate motions. Both the government and the defendant complied, filing separate motions for a stay of the sentenc e. The court denied both motions on October 13, 2009. The government file d a motion for resentencing two days later, but the court entered judgment imposing the six

- month sentence that same day . The defendant timely appealed his sentence , asking that the case be remanded to the District Court for resentencing. To its credit, the government acknowledges its error and supports the defendant’s request that the plea bargain be enforced

. Whether the government has violated the terms of a plea agreement is a question of law to be reviewed de novo; if a violation is found the case must be remanded either for resentencing or for withdrawal of the guilty plea. United States v. Moscahlaidis , 868 F.2d 1357, 1360 (3d Cir. 1989) (citing Santobello v. New York , 404 U.S. 257 (1971) ; United States v. Miller , 565 F.2d 1273 (3d Cir. 1977); Un ited States v. Crusco , 536 F.2d 21 (3d Cir. 1976)). We agree with the parties that the government violated the terms of the plea agreement by failing to recommend a sentence of probation. The prosecution made a commitmen t and admits fail ing to live up to it. T he attempted correction at the sidebar conference came too late to affect the District Court’s decision and was not an3 

### adequate substitute for specific performance

. Accordingly, vacatur of the sentence is warranted. As to remedy, the defendant do es not ask to withdraw his plea, preferring instead to be resentenced in accordance with the terms of his agreement. We agree that this is the appropriate resolution of the case, and will therefore remand with instructions that the defendant be resentence d by a different judge.