[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-12640

________________________

D.C. Docket No. 9:14-cr-80209-DTKH-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JACOBI TAVARES HUNTER, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(August 26, 2016)

Before WILSON and JULIE CARNES, Circuit Judges, and MOORE,∗ District 

Judge.

 ∗ Honorable William T. Moore, United States District Judge for the Southern District of 

Georgia, sitting by designation. 

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WILSON, Circuit Judge:

Jacobi Hunter appeals his 60-month sentence, imposed after he pleaded

guilty to drug-related charges pursuant to a written plea agreement. On appeal, 

Hunter contends that the government breached the plea agreement by failing to 

recommend a reduction for acceptance of responsibility at sentencing. We agree. 

Hunter was induced to plead guilty to all charges against him based, in part, on the 

promise that the government would recommend the reduction on his behalf. The 

government not only failed to recommend the reduction at sentencing, but also 

objected to and argued against Hunter receiving the reduction based on facts it 

knew prior to offering the plea deal. This conduct constitutes a breach of the 

agreement entered into by the parties. Accordingly, we vacate Hunter’s sentence 

and remand to the district court for resentencing. 

I. BACKGROUND

A federal grand jury indicted Hunter on four charges of possession with 

intent to distribute marijuana, cocaine, crack cocaine, and heroin, in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(C)–(D). These charges arose from a traffic stop, 

wherein officers had stopped Hunter for illegal window tint on his vehicle, and, 

after detecting marijuana, ordered Hunter out of his car and frisked him. Hunter 

filed motions to dismiss and to suppress the evidence obtained during the stop, 

which the district court heard and denied. 

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During the hearing on those motions (the “suppression hearing”), which took 

place on February 4, 2015, with both parties present, the district court explicitly 

found that Hunter’s testimony regarding some of the facts leading up to the traffic 

stop was not credible. Specifically, the officers had testified that Hunter was 

driving south on Congress Avenue and had oversteered into a right turn onto west 

Blue Heron Boulevard when they pulled him over for his illegal window tint, but 

Hunter testified that he was driving west on Blue Heron Boulevard, not Congress 

Avenue, and had not oversteered. Acknowledging these factual discrepancies, the 

district court found that “Hunter’s testimony [wa]s not credible in this regard.” 

After the suppression hearing, the government extended a plea deal. The 

written plea agreement provided that Hunter would plead guilty to all four charges

brought against him, with the following relevant stipulation (the “acceptance-ofresponsibility reduction”):

The United States agrees that it will recommend at 

sentencing that the Court reduce by two levels the 

sentencing guideline level applicable to the defendant’s 

offense, pursuant to [§] 3E1.1(a) of the Sentencing 

Guidelines, based upon the defendant’s recognition and 

affirmative and timely acceptance of personal 

responsibility. If at the time of sentencing the 

defendant’s offense level is determined to be 16 or 

greater, the government will make a motion requesting an 

additional one level decrease . . . stating that the 

defendant has assisted authorities in the investigation or 

prosecution of her [sic] own misconduct by timely 

notifying authorities of his intention to enter a plea of 

guilty, thereby permitting the government to avoid 

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preparing for trial and permitting the government and the 

Court to allocate their resources efficiently.

Hunter accepted this deal and, on March 4, 2015, pleaded guilty at a change-ofplea hearing in the district court. 

The United States Probation Office prepared a presentence investigation 

report (PSI) that included a two-level increase for obstruction of justice and did not 

include a reduction for acceptance of responsibility. Hunter submitted several 

objections to the PSI, including objections to the enhancement for obstruction of 

justice and the failure to include an acceptance-of-responsibility reduction. The 

government did not request the reduction for acceptance of responsibility. Instead, 

the government filed a motion seeking an upward departure or variance from the 

recommended guidelines range. In response, Hunter filed a motion seeking a 

downward variance due to, inter alia, the physical and mental harm he allegedly 

suffered during his arrest.

At sentencing, Hunter objected to the exclusion of the acceptance-ofresponsibility reduction from the PSI, arguing that the government’s failure to 

recommend the reduction was a violation of the plea agreement. The government 

again did not recommend the reduction. Instead, it officially objected to Hunter 

receiving the reduction and argued for an enhancement. The government 

maintained that it was not obligated by the plea agreement to seek a reduction for 

acceptance of responsibility if the court concluded that Hunter had obstructed 

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justice by committing perjury during his suppression hearing, even though the 

hearing took place before the plea deal was offered. Arguing that this failure to 

recommend the reduction constituted a breach, Hunter sought specific performance 

by the government and to have the case reassigned to another judge. 

The district court found that the government had not breached the plea 

agreement, but it expressed concern that “the Government seems to give with one 

hand and take back with the other, because a defendant . . . would believe if he 

signed this agreement that he was going to get the acceptance of responsibility.” 

Thus, the district court held it would give Hunter the acceptance-of-responsibility 

reduction to “solve this,” recognizing that “the decision to plead guilty is an 

enormously important decision.” The government subsequently conceded that, 

given the district court’s ruling, Hunter was “probably” entitled to a three-level 

reduction. The government then argued its motion for an upward departure or 

variance. In light of its rulings during the hearing, the court recalculated the 

applicable guidelines range as 18 to 24 months’ imprisonment. Over Hunter’s 

objections, the district court imposed a 60-month sentence. This appeal followed. 

II. DISCUSSION

As a threshold matter, Hunter’s conditional plea agreement reserved the 

right to appeal only the denial of his motion to suppress physical evidence and 

waived other challenges. However, an appeal waiver does not bar a defendant’s 

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claim that the government breached the plea agreement. United States v. PuentesHurtado, 794 F.3d 1278, 1284 (11th Cir. 2015); United States v. Gonsalves, 121 

F.3d 1416, 1419 (11th Cir. 1997). Thus, we may consider Hunter’s appeal. 

Hunter preserved his objection to the purported breach of the plea agreement 

in the district court, and the parties agree on the facts material to this appeal. 

Accordingly, we must determine only whether the government’s undisputed 

conduct breached the plea agreement. We review this legal issue de novo. United 

States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). We first address 

whether the government breached its agreement with Hunter. Concluding that it 

did, we then turn to the appropriate remedy. 

A. Breach

“[A] plea agreement must be construed in light of the fact that it constitutes 

a waiver of substantial constitutional rights requiring that the defendant be 

adequately warned of the consequences of the plea.” United States v. Jefferies, 

908 F.2d 1520, 1523 (11th Cir. 1990) (internal quotation marks omitted). “A 

material promise by the government, which induces a defendant to plead guilty, 

binds the government to that promise.” United States v. Thomas, 487 F.3d 1358, 

1360 (11th Cir. 2007) (per curiam) (citing Santobello v. New York, 404 U.S. 257, 

262, 92 S. Ct. 495, 499 (1971)). Hence, the government breaches a plea agreement 

when it fails to perform the promises on which the plea was based. 

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“Whether the government violated the agreement is judged according to the 

defendant’s reasonable understanding at the time he entered his plea.” United 

States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). We apply an objective 

standard to “decide whether the government’s actions are inconsistent” with the 

defendant’s understanding of the plea agreement, Copeland, 381 F.3d at 1105, 

rather than reading the agreement in a “hyper-technical” or “rigidly literal” 

manner, United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992) (internal 

quotation marks omitted).

In exchange for Hunter’s promise to plead guilty to all four charges in his

indictment, the government promised to recommend a reduction for acceptance of 

responsibility at sentencing. Yet, at sentencing, the government did not

recommend the reduction. In fact, the government objected to and argued against

Hunter receiving the reduction. Viewed objectively, “the government’s actions are 

inconsistent with what the defendant reasonably understood when he entered his 

guilty plea.”1

 See Copeland, 381 F.3d at 1105 (internal quotation mark omitted); 

cf. United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“It is certainly 

inconsistent with a defendant’s reasonable understanding of a promise not to 

contest a reduction for acceptance of responsibility for the government to add its 

 1 The government’s statement at the sentencing hearing that Hunter was “probably” 

entitled to the three-level reduction occurred after the district court had already ruled that it 

would give Hunter the reduction. This perfunctory, after-the-fact concession does not constitute

the recommendation for which Hunter bargained. 

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voice in support of the PSI recommendation that the defendant receive no such 

reduction.”). 

It is clear that Hunter reasonably understood the government would 

recommend the acceptance-of-responsibility reduction on his behalf at sentencing. 

The promise to recommend the reduction was a key material concession made by 

the government in the plea agreement.

2

 The government did not drop any counts 

in the indictment or promise to make any other recommendations to the court that 

might potentially reduce Hunter’s sentence. And the government does not dispute 

that its promise to recommend an acceptance-of-responsibility reduction was a 

significant factor in Hunter’s decision to accept the plea agreement and waive his 

right to a trial. Consequently, Hunter waived his substantial right to have the 

government prove each charge against him beyond a reasonable doubt before a 

jury of his peers as part of the consideration for the government’s promise to 

recommend the acceptance-of-responsibility reduction. Thus, the government’s 

failure to recommend the reduction violated the plea agreement reached by the 

parties. See Santobello, 404 U.S. at 262, 92 S. Ct. at 499 (“[W]hen a plea rests in 

any significant degree on a promise or agreement of the prosecutor, so that it can 

 2 The only other concession the government made was to allow Hunter to enter a 

conditional plea permitting an appeal of the denial of the suppression motion, pursuant to Fed. R. 

Crim. P. 11(a)(2). Hunter chose not to appeal the denial of his suppression motion, electing to 

appeal only as to breach and sentencing. 

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be said to be part of the inducement or consideration, such promise must be 

fulfilled.”). 

However, the government maintains that no reversible error exists because it 

was excused from recommending the reduction. Under the terms of the plea 

agreement, the government was released from its obligation to recommend the 

reduction if Hunter:

(1) fails or refuses to make a full, accurate and complete 

disclosure to the probation office of the 

circumstances surrounding the relevant offense 

conduct; 

(2) is found to have misrepresented facts to the 

government prior to entering into this plea 

agreement; 

(3) committed any act inconsistent with the acceptance 

of responsibility pursuant to USSG § 3C1.1; or, 

(4) commits any misconduct after entering into this plea 

agreement . . . .

The government contends that the second exception (the “misrepresentation 

exception”) and/or the third exception (the “inconsistent act exception”) were met

here. In support, the government points to the district court’s explicit finding at the 

suppression hearing: the testimony by Hunter regarding which road his car was on 

and whether he crossed the safety line was not credible. Thus, on appeal, as before 

the district court, the government argues that the district court’s credibility finding 

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at the earlier suppression hearing is the sole and sufficient basis for releasing the 

government from its obligation. 

We are unpersuaded. Neither the misrepresentation exception nor the 

inconsistent act exception excuses the government from its obligation to 

recommend the acceptance-of-responsibility reduction: the government cannot 

avail itself of the exceptions based solely on facts of which it was aware prior to 

entering the plea agreement. Such a practice would render the government’s 

promise to recommend the reduction illusory and defy a defendant’s reasonable 

understanding of the plea agreement. 

The district court expressly made its finding that Hunter’s testimony during 

the suppression hearing was not credible before the negotiation of the plea 

agreement, in the presence of both parties. This undisputed fact is dispositive. 

At the time the government offered to recommend the reduction, it had full, current 

knowledge of Hunter’s non-credible testimony. That cannot be sufficient to trigger 

either the misrepresentation exception or the inconsistent act exception. If, at the 

time it offered the plea agreement, the government was aware of facts that would 

allow it to employ the exceptions and avoid its promise therein, then it would be 

extending an illusory promise. The plea agreement—which is a contract between 

the parties—would fail from the outset due to a lack of valid consideration. We 

will not construe the agreement in this manner. See, e.g., M&G Polymers USA, 

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LLC v. Tackett, 574 U.S. ___, ___, 135 S. Ct. 926, 936 (2015) (observing that 

courts are “instruct[ed] . . . to avoid constructions of contracts that would render 

promises illusory because such promises cannot serve as consideration for a 

contract”).

Moreover, a defendant would not have reasonably understood that the plea 

agreement allowed the government to evade its promise to recommend the 

acceptance-of-responsibility reduction. It has long been the rule in our circuit that 

the defendant’s reasonable understanding of the agreement at the time of his plea 

controls our inquiry into the putative breach, see, e.g., Copeland, 381 F.3d at 1105,

but the government failed to offer any argument in its brief that Hunter reasonably 

should have understood that the government could opt out of recommending the

reduction. Perhaps that is because this would be a tough argument to make: a 

defendant would not have reasonably understood that the government could renege 

on recommending the reduction. As discussed above, the government knew 

Hunter had given non-credible testimony at the suppression hearing before it 

drafted, offered, and executed the plea agreement in which it promised to argue for 

an acceptance-of-responsibility reduction. Likewise, at the time of receiving the 

proffered plea deal, Hunter knew the government was aware the district court 

found his testimony to be non-credible. Viewed objectively, Hunter would not 

have reasonably understood the terms of his plea agreement to mean he was 

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forfeiting a core constitutional right in exchange for a promise the government was 

already excused from fulfilling—in other words, an empty promise. See In Re 

Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986) (per curiam) (“To constitute a valid 

waiver of substantial constitutional rights, a guilty plea . . . must be offered with 

sufficient awareness of the likely consequences.” (citing Brady v. United States, 

397 U.S. 742, 748, 90 S. Ct. 1463, 1468–69 (1970)).

Our conclusion as to Hunter’s reasonable understanding of the agreement is 

bolstered by the timeline of events in this case. See Rewis, 969 F.2d at 988

(instructing reviewing courts to consider the plea agreement against the 

background of the plea negotiations). The plea bargaining process began directly

after the suppression hearing. As Hunter’s defense attorney recounted at the 

sentencing hearing, “as soon as . . . motions were concluded and the [c]ourt ruled 

[at the suppression hearing], [the Assistant United States Attorney (AUSA) 

representing the government] and I had a conversation where he agreed to prepare 

a plea agreement.” Hunter soon thereafter accepted the agreement, entering his 

change-of-plea only one month after the hearing. Therefore, the district court 

made an explicit finding of non-credibility at the suppression hearing—with both 

parties present—immediately before the government offered the plea deal. No 

significant time elapsed between the district court’s explicit finding of non-credible 

testimony and the government’s proffer of a plea agreement premised on the 

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acceptance-of-responsibility reduction such that we could believe either party had 

overlooked or forgotten this finding. 

Given that both parties were present when the district court explicitly found 

Hunter’s testimony not to be credible, and that the government then offered to 

recommend a reduction if Hunter pleaded guilty, it was reasonable for Hunter to 

believe that the promised recommendation would be forthcoming, notwithstanding 

the pre-agreement conduct of which the government was well aware. Indeed, the 

district court noted as much, stating: “[A] defendant . . . would believe if he signed 

this agreement that he was going to get the acceptance of responsibility.” Under 

the objective standard by which we evaluate plea agreements, this is precisely what 

renders the government’s conduct a breach. We disagree with the district court’s 

conclusion to the contrary. 

The government attempts to refute this conclusion by pointing to the text of 

the plea agreement. To succeed on its argument, the government must convince us 

that, based on the language of the above-discussed misrepresentation exception and 

inconsistent act exception, Hunter reasonably should have known that the 

government was not required to recommend the reduction. See Copeland, 381 

F.3d at 1105. We are not convinced. The government’s interpretation of the 

exceptions is in fact inconsistent with the text. 

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The misrepresentation exception states that the government is excused from 

its obligation if a misrepresentation “is found.” The government wants us to read 

this phrase as including misrepresentations that are “already known.” However, a 

more reasonable reading is that this clause anticipates later discovery of 

dishonesty. See Rewis, 969 F.2d at 988 (noting that, to the extent any term in the 

agreement is ambiguous, we construe it against the government). That is to say, 

the exception most reasonably covers a scenario where the government extends an 

offer, the defendant accepts, and the government only then discovers that the 

defendant had been dishonest during or prior to the plea negotiation. In such a 

circumstance, we would have little trouble concluding that the government was 

excused from its obligation. Yet, in the present case, there were no newly found 

misrepresentations; the government did not discover dishonesty or additional 

misconduct. We cannot conclude that, based on a straightforward reading of this

text, Hunter should have reasonably understood his earlier suppression hearing 

testimony to implicate this exception. Consequently, the misrepresentation 

exception does not excuse the government from its obligation. 

Separately, the inconsistent act exception excuses the government if Hunter 

“committed any act inconsistent with the acceptance of responsibility pursuant to 

USSG § 3C1.1.” The government contends that, under this exception, it was only 

required to recommend the reduction if the district court did not apply an

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obstruction-of-justice enhancement based on Hunter’s suppression hearing 

testimony. In other words, according to the government, it had the right to seek an 

obstruction-of-justice enhancement based on Hunter’s earlier “inconsistent act”

(or, to wait and see whether the district court made such a finding), and it only had 

to recommend the acceptance-of responsibility reduction if the court did not apply 

the enhancement. 

This complicated interpretation of the exception is belied by the agreement’s 

plain language. Nowhere does the agreement suggest that the government’s 

promise to recommend the acceptance-of-responsibility reduction was contingent 

on some condition precedent, such as the district court failing to find an

obstruction of justice.3

 If the government intended to condition its obligation to 

recommend the reduction on a specific ruling with regard to an obstruction 

enhancement, then it should have made that condition express. Moreover, we will 

not read the affirmative language that the government will recommend the 

reduction as intending to do the opposite—placing itself in an inconsistent position 

by hoping for the opposite of its promise, and only upon receiving an adverse 

 3 In fact, even if the district court had found obstruction of justice, such a finding would 

not excuse the government from its obligation to recommend the acceptance-of-responsibility 

reduction: the Sentencing Guidelines explicitly anticipate that adjustments under both the 

obstruction enhancement and the acceptance reduction may apply in some cases. See U.S.S.G. § 

3E1.1 n.4. Additionally, the record contradicts the government’s argument. The transcript of the 

sentencing proceedings demonstrates that the government immediately and explicitly objected to 

Hunter receiving the acceptance-of-responsibility reduction. Thus, as a matter of both law and 

fact, the government’s obstruction-of-justice argument is a non-sequitur.

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ruling fulfilling the express promise it made to the defendant. This type of “heads 

I win, tails you lose” interpretation is incompatible with the plea bargaining

process. 

For these reasons, we are not persuaded that any language in the plea 

agreement excused the government from its obligation to recommend the 

acceptance-of-responsibility reduction at sentencing. The government referred to 

the exceptions paragraph in the plea agreement as its “escape clause.” But to 

accept the government’s argument is to accept that the government could make a 

promise it knew it did not have to keep; it could induce a guilty plea in exchange 

for nothing. That is not an escape clause—it is a trap door. 

In sum, to obtain Hunter’s guilty plea to all charges in the indictment, the 

government agreed to recommend a reduction for acceptance of responsibility. 

However, the government not only failed to recommend the reduction at Hunter’s 

sentencing, but, in the face of Hunter’s continued objection that this refusal 

constituted a breach of the plea agreement, the government persisted in actively 

and formally opposing the reduction. There is no viable excuse for this conduct; it

constitutes a significant and deliberate breach of the plea agreement. 

B. Remedy

When a breach of the plea agreement is established and an objection to the 

breach was preserved, “automatic reversal is warranted.” Puckett v. United States, 

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556 U.S. 129, 141, 129 S. Ct. 1423, 1432 (2009) (citing Santobello, 404 U.S. at 

261–62, 92 S. Ct. at 498–99). In such circumstances, reversal is based “upon a 

policy interest in establishing the trust between defendants and prosecutors that is 

necessary to sustain plea bargaining—an essential and highly desirable part of the 

criminal process.” Id., 129 S. Ct. at 1432 (internal quotation marks omitted). 

Since we conclude that the government breached the plea agreement and Hunter 

preserved his objection to that breach, reversal is required. 

Additionally, Hunter is entitled to a remedy. Under our precedent, “[t]here 

are two remedies available when a plea agreement is breached: (1) remand the case 

for resentencing according to the terms of the agreement before a different judge, 

or (2) permit the withdrawal of the guilty plea.” Rewis, 969 F.2d at 988–89; see 

Boatner, 966 F.2d at 1580. The choice between these two remedies is within our

discretion, although withdrawal of the plea is less favored in our circuit. See 

Jefferies, 908 F.2d at 1527 (collecting cases favoring specific performance). 

Hunter does not wish to withdraw his plea. Instead, he requests remand and 

resentencing before a different judge. Hunter’s guilty plea was clearly induced by 

the government’s promise to recommend an acceptance-of-responsibility 

reduction. The government is therefore bound to that promise, and Hunter is 

entitled to specific performance of the terms of the agreement as he reasonably 

understood them at the time of his plea. Accordingly, as it is within our discretion 

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to do, we remand for resentencing according to the terms of the agreement before a 

different judge. See United States v. Tobon-Hernandez, 845 F.2d 277, 281 (11th 

Cir. 1988) (exercising discretion “in favor of specific performance” and remanding 

“for resentencing by another judge in compliance with the plea agreement”).

The government objects to this result, taking the position that, irrespective of 

breach, Hunter is not entitled to any remedy. In the government’s view, Hunter 

already got exactly what he bargained for because the district court applied the 

acceptance-of-responsibility reduction. However, this position is irreconcilable 

with the Supreme Court’s decision in Santobello. There, the Court reversed even 

though the district court had explicitly stated that the government’s sentencing 

recommendation (which the Court found to be in breach of the parties’ agreement) 

did not influence its sentencing decision. Santobello, 404 U.S. at 262, 92 S. Ct. at 

499. We similarly reverse where the district court disregarded the government’s 

failure to recommend—and objection to—the acceptance-of-responsibility 

reduction.4

 

 4 The government’s reliance on Puckett to claim Hunter must show the breach affected 

his sentence is inapposite. Puckett was decided under plain-error review and did not purport to 

overrule Santobello in the preserved-error context. Puckett, 556 U.S. at 140–41, 129 S. Ct. at 

1432. To the contrary, Puckett reaffirmed the Supreme Court’s holding in Santobello that 

“automatic reversal is warranted when objection to the government’s breach of a plea agreement 

has been preserved.” Id. at 141, 129 S. Ct. at 1432. And no binding precedent from either this 

court or the Supreme Court permits deviation from Santobello in the preserved-error context. 

Thus, for a breach that was objected to in the proceedings below, Santobello remains the 

controlling case. 

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Under Santobello, we are not concerned with whether the district court was 

influenced by the government’s recommendation (or lack thereof); instead, our 

focus is on “the interests of justice and appropriate recognition of the duties of the 

prosecution in relation to promises made in the negotiation of pleas of guilty.” Id., 

92 S. Ct. at 499. The holding from and principles in Santobello are premised on 

the nature of the plea bargaining process. 

As we have frequently noted in applying these principles, “the AUSA, not 

the court, violated the plea agreement; the sentencing judge’s acts are not 

important to this issue.” United States v. Johnson, 132 F.3d 628, 630 (11th Cir. 

1998) (per curiam); see Tobon-Hernandez, 845 F.2d at 280 (“[W]e do not address 

the district court’s exercise of discretion in imposing a sentence. Rather, we focus 

on the government’s violation of its plea agreement.”); accord United States v. 

VanDam, 493 F.3d 1194, 1204 (10th Cir. 2007); United States v. Clark, 55 F.3d 9, 

13 (1st Cir. 1995) (“[E]ven if, as in this case, the sentencing judge indicates that 

the prosecutor’s breach had no effect on the defendant’s sentence, the defendant is 

still entitled to a remedy.”). This makes sense; entering into a plea agreement 

forms a contract between the defendant and the government, and it is the 

defendant’s rights that are violated when the government breaks its promises in the 

agreement. By agreeing to plead guilty pursuant to a plea agreement, the 

defendant waives his rights “not in exchange for the actual sentence or impact on 

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the judge, but for the prosecutor’s statements in court.” Correale v. United States, 

479 F.2d 944, 949 (1st Cir. 1973) (emphasis added). 

Neither Hunter nor the government could control how the district court

sentenced Hunter. That is, Hunter could not bargain for, and thus was never 

entitled to, the acceptance-of-responsibility reduction itself. Hunter bargained for

the government to stand before the district court and affirmatively recommend the 

reduction on his behalf. What Hunter received instead was the government 

objecting to the reduction in the district court and arguing against the suggestion 

that Hunter was entitled to it. Any actions by the district court thereafter are 

irrelevant to the breach and the remedy; the court can neither moot nor cure the 

government’s breach.

5

Thus, applying Santobello, we reject the government’s argument that, 

because the district court applied the acceptance-of-responsibility reduction, no 

remedy for the government’s breach is warranted. Hunter bargained for—and is 

entitled to—the government’s recommendation of the reduction on his behalf. 

That is what he must receive when he is resentenced. Accordingly, we remand for 

 5 Although the district court cannot cure the government’s breach of a plea agreement, 

the Supreme Court has opined that the government may be able to do so. See Puckett, 556 U.S. 

at 140, 129 S. Ct. at 1432 (commenting that the government may be able to cure a breach if it 

“simply forgot its commitment and is willing to adhere to the [plea] agreement”); see also United 

States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010) (noting that the government might be 

able to cure a breach if it immediately and unequivocally adhered to the plea agreement upon 

objection). Here, the government failed to brief and thus waived any argument that it acted to 

somehow cure the breach. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 

2003). 

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resentencing before a different district court judge. We do so, not due to lack of 

trust in the original sentencing judge’s capacity for fairness, but to reestablish the 

trust between the defendant and the government that is essential to the plea 

bargaining process.

III. CONCLUSION

“Because plea bargaining requires defendants to waive fundamental 

constitutional rights, we hold prosecutors engaging in plea bargaining to the most 

meticulous standards of both promise and performance.” United States v. Riggs, 

287 F.3d 221, 224 (1st Cir. 2002) (internal quotation marks omitted). In addition, 

the plea bargaining process “must be attended by safeguards to insure the 

defendant what is reasonably due in the circumstances.” Santobello, 404 U.S. at 

262–63, 92 S. Ct. at 499. Such requisite standards and safeguards were not met in 

the proceedings below. We find that the government breached its plea agreement 

with Hunter, and we reverse and remand for resentencing consistent with this 

opinion.

6

 

REVERSED and REMANDED.

 6 Given that the breach of the plea agreement requires vacatur of Hunter’s sentence, 

Hunter’s additional challenge to the procedural reasonableness of his sentence is moot. 

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