F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

P A U L G A B R

I E L M O R

A L E S H E R

E D I A , AKA Alejandro Montada Heredia, AKA Alejandro Montada, AKA Paul Gabriel Morales, AKA Paul Heredia Morales, Defendant-Appellant

. N o. 12-50331

D.C. No. 8:12-cr-00006- SVW -1

OPI NI ON

A ppeal from the United States District Court for the Central District of California Stephen V. W ilson, District J u dg e, Presiding

Arg ued and Submitted May 15, 2014—Pasadena, California

F iled October 8, 2014

B efore: Alex Koz inski, Chief J udg e, and Kim McL ane W ardlaw and Ray

mond C. F isher, Circuit J udg es.

Opinion by

J udg e W ardlawU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 2

SUMMARY *

Crim inal Law

The panel vaca t ed a sentence for illeg al reentry in violation of 8 U.S.C. § 1326, and remanded for resentencing

, in a case in which the d efendant and the g overnment ex ecuted

a fast-track plea ag r eement under F ed. R. Cr i m

. P. 11(c)(1)(C).

The panel held that the g overnment breached the plea
ag reement throug h its repeated and inflammatory references
to the defendant ’ s criminal history in its sentencing memorandum, serving n o pr ac t i c al purpose but to a rg ue implicitly for a hig her punishment th a n it had ag r eed to

reco m m e nd. The panel held that the g o vernment also breached the plea a g reement b y violating its promise n ot to

s u gg est in any way that the district court impose a se n t e n c e other than the stipulated one.

The panel ex plained that when a defendant timely o bjects,

moves for specific performance, and successfully appeals the district c ourt’s post-breach order rejecting a Rule 11(c)(1)(C) plea a g reement, the a

ppr o priate remedy is to vacate the conviction a

nd sentence and remand for further proceeding s before a different judg e. B ecause the defendant appe aled only his sentence and did not seek vacatur of his conviction, the panel v acated only h i s s e ntence and remanded for resentencing

before a different district judg e.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 3

COUNSEL

Sean K. Kennedy

, Federal Public Defender, J onathan D

. L ibby (arg

ued), Deputy F ederal P u b lic Defender, L os Ang eles, California, for Defendant-Appellant.

André B irotte J r., United States Attorney
, Robert E. Dug dale, Assistant U nited S t ates Attorney
, Chief, Criminal D ivision, L

. Ashley Aull (arg

ued), A ssistant U nited States A t t orney , Nathaniel B

. W al k er , Special Assistant United States Attorney , L os Ang eles, California, for Plaintiff-Appellee.

OP INION

W A RDL AW , Circuit J udg e:

Every day a long the southwest border, previously deported a liens lacking entry documents a re arrested, detained, and c harg ed with illeg al reentry

. Once convicted, they serve a term of impri sonment, and then are ag ain deported. The numbers a re so g reat that federal prosecutors in these border states beg an to resort to an efficient means o f securing a conviction: a “fast-track” plea ag r eeme n t that binds the g o vernment a

n d the defendant, but not the district judg e.

The g o vernment secures the benefit of a strea m l i n ed
process that min i m i z es the burden on its prosecutorial

resources. I t n e e d n o t g o before a g r and jury to secure an indictment; battle motions, including collateral attacks on the underly ing deportation; prosecute a jury trial; o r o p p o se an appeal. The d efendant, in turn, waives constitutional a nd

o ther rig hts and ag rees to a term of incarceration and, o ft en ,U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 4

a term of supervised release ordinarily discourag e d by the U

. S

. Sentencing Guidelines. W hat is the incentive for t h e defendant to take this deal? The prosecutor b i nds his office
to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a “ united front” in favor of a reduced sentence to the district judg e. I f the judg e d oes not accept this sentence, the defend a n t m a y walk a way from his g u ilty plea, and proceeding s wi l l beg in

anew.

Paul Gabriel Morales H e r e d ia (Morales) was one such defendant. B ut in Mor a l es’s case, the orderly and e fficient plea-barg aining p r ocess did not play out as i n tended. The
g overnment ex tended the p r o mise of a reduced prison term with one hand and took i t a w a y with the other. The
p r o s e cutor’s recommendation o f a six -month p rison t e r m r a n g hollow as he repeatedly and unnecessarily e m p hasiz ed Morales’s criminal h istory

, adding fo r good measure his personal opinion that “defendant’s his t o ry communicates a consistent disreg ard for both the crim i n a l and immig r ation laws of the United S t a tes.” Morales’s counsel timely objected and soug h t specific performance of t h e p lea
ag reement. The district judg e denied this relief o n t h e irrelevant g round that the prosecu t o r ’ s statements did not influence him. W e conclude that Morales is entitled to relief, and we vacate his sentenc e a nd remand for f urther proceeding s before a different judg e.

I.

The I mmig ration and Nation a l ity Act of 1952 imposed felony criminal liabilit y f or a previously deported alien w ho subsequently entered, attempted to enter, or was found in the United States. See Pub. L

. 82-4 1 4
, § 2 7 6
, 66 Stat. 163, 229U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 5

(1952) (codified as amended at 8 U.S.C. § 1326). F or several decades thereafter, this provision—like the immig ration laws

as a whole—was lig htly enforced along the southwest border. Aliens were seldom charg e d w ith illeg al reentry under § 1326. A few were charg e d with misdemeanor improper entry , 8 U.S.C. § 1325, and most were simpl y d eported without criminal sanctions

. 1 I n 1992, out of more than 565,000 undocumented aliens apprehended in t h e Southern District o f California, only 245 were charg ed with a felony o f
any k ind, and many of those charg es ar o s e f r om conduct other than the unlawful entry itself. 2

I n th e m id-1990s, the federal g overnment increased its enforceme n t o f the immig ration laws in the southwest, rapidly e x panding the r e s o u r ces available to the B order Patrol. 3 Since then, the U n ited States has prosecuted increasing numbers of aliens for illeg al reentry under § 1326 and improper entry under § 1325. I n 1993, the Department o f J u s t i c e i n i t i a t e d fe w er t h a n 2
, 5 0 0 il l e ga l r e e n t r y prosecutions. 4 B y 2004, that number had g rown to more than

1 See A lan D

. B ersin

, Rein ven tin g Immig ra tio n La w En fo rcemen t in th e S o u th ern D istrict o

f Ca lifo r n ia
, 8 F E D

. S E NT ’ G R E P

. 2 5 4
, 2 5 4

– 55 (1 9 9 6 ).

2 S ee W illiam Bran if

f

, Lo ca l Discretio n , Pro secu to r ia l C h o ices a n d th e S en ten cin g Gu id elin es , 5 F E D

. S E NT ’ G R E P . 3 0 9 , 3 0 9 (1 9 93 ).

3 S ee g en era lly U.S. G E N

. A CCOUNT I NG O F F I CE , GA O- 01

- 8 4 2
, INS’ S OUT H W E S T B ORDE R S T RA T E G Y : R E S OURCE A ND I MPA CT I SSUE S R E MA I N A F T E R S E V E N Y E A RS (2 0 0 1).

4 See At Nea r ly 1 0 0 ,0 0 0

, Immig r a tio n Pro secu tio n s Rea ch All-Time Hig h i n FY 20 1 3
, T RA NSA CT I ONA L R

E CORDS A CCE S S C L E A RI NG HOUSE (No v . 2 5 , 2 0 1 3 ), h ttp ://trac.sy r.ed u /im m i g ratio n /rep o rts/3 3 6

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 6

13,000. 5 I n each of the p ast five y ears, the federal
g overnment has initiated o ver 30
, 0 00 illeg al reentry prosecutions, including an all-time hig h of 37,440 last y ear. 6 These p rosecutions constitute a sig nificant proportion of the federal criminal docket. More than a third of all federal defendants in the Ninth Circuit are charg ed with immig r ation offenses. 7

F ast-track plea p rog rams a r e both a response to and a

cause o f this rise in prosecutions. I n 1993, the United States Attorney ’s Office for the Sout h e r n District of California beg a n to o ffer accelerated plea d eals to defendants charg ed with illeg al reentry under 8 U.S.C. § 1 326(b), who faced increased se n t e n c i n g e xp o s u r e b e c a u se their previous removal had o ccurred subsequent to a felony conviction. See United States v. Estrada-Plata

, 57 F .3d 757, 759 ( 9 t h C i r. 1995). Defendants were required to waive indictm e n t, plead g uilty at the initial appearance, waive appeal of their sentence, and stipulate to a two-y ear sentence, below the a pplicable r ang e

5 S ee C h a n g es in Crimin a l En

fo rcemen t o

f Immig r a tio n L a ws , T RA NSA CT I O NA L R E CORDS A CC ESS C L E A RI NG HOUSE (May 1 3
, 2 0 1 4 ), h ttp ://trac.sy

r.ed u /im m ig ratio n / rep o rts/3 5 4

.

6 Id

. W h ile th e n

u m b er o f § 1 3 2 6 ch arg es h as in creased in ro u g h p arallel

w ith th e n u m b er o f § 1 3 2 5 ch arg es, th e n u m b er o f § 1 3 2 6 co n v ictio n s h as sta r t e d to declin e as d ef en d an ts in creasin g ly reso lv e th eir cases b y p lead in g to m isd em ean o rs. See D esp ite Rise in Felo n y C h a rg es, Mo st Im m i g r a tio n Co n victio n s Rema in Misd emea n o rs , T R

A NSA CT I ONA L R E C O R D S A C C E S S C L E A R I N G H O U S E ( J u n e 2 6
, 2 0 1 4 )

, h ttp ://trac.sy

r.ed u /im m ig ratio n / rep o rts/3 5 6

. In th e District o f A rizo n a, in
p articu lar, alm o s t 9 0 p ercen t of d ef en d an ts in i tially ch arg ed u n d er § 1 3 2 6

are ev en tu ally

co n v icted u n d er § 1 3 2 5

. S ee id

.

7 S ee U NI T E D S T A T E S C OURT S F O R T H E N I NT H C I RCUI T , 2 0 1 2 A N N U AL R E P ORT 6 5 (2 0 1 2 ).U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 7

of the then-binding Guidelines. See id

. I n 1995, the same United States Attorney ’ s Office beg an to offer fast-track pleas
to all illeg a l reentry defendan ts with substantial criminal histories, requiring defendants to plead g uilty under § 1326(a) and to stipulate to the entry of an order of removal that would result in their deportation immediately upon their r el e a se from prison. 8 Making w idespread use of fast-track p leas, the Southern District of Cal i fornia prosecuted more felony immig ration offenses in 1995 than it had in the previous ten
y ears combined. 9 I n other border d istricts w h e r e the federal
g overnment had co mmitted additional resources to enforcement, fast-track prog rams a lso emerg ed, a nd prosecutions rapidly

increased. 1 0

I n 2 003, Cong ress endorsed fast-track pleas by directing the United States Sentencin g Commission to p r omulg ate a policy s tatement authoriz ing reduced sentences for participants in fast-track prog rams. See Prosecutorial Remedies and Other Tool s to End the Ex ploitation o f C h i l d ren Today ( PROTECT) A ct of 2003, Pub. L

. No. 108- 2 1
, § 401(m)(2)(B ), 117 Stat. 650, 675 (2003). T h e Sentencing Guidelines now permit the district court to adjust the offense level of a defendant who participates in a fasttrack prog ram not more than f o u r l evels downward. See U.S.S.G. § 5 K3.1. The courts of appeals eventually split over whether a d istrict court could impose a below-Guidelines
sentence for a defendant in a district w ithout a fast-track

8 S ee B ersin

, su

p ra n o te 1 , at 2 5 6

.

9 S ee id

.

10 S ee id

. at 2 5 8 n

. 1 ; see a lso T h om as E. Go rm an , A Histo ry o f Fa s tTra ck S en ten cin g , 2 1 F E D

. S E NT ’ G R E P . 3 1 1 , 3 1 1 (2 0 0 9 ).U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 8

prog r am on the basis of an unwarranted sentencing disparity with a fast-track defendant who had c ommitted the same

o f fense. Compare, e.g. , United States v. Gonzalez-Zote l o , 556 F .3d 736, 739–40 (9th Cir. 2009), with United States v

. Rodriguez

, 527 F .3d 221, 227–29 (1 s t Cir. 2008). The Department of J ustice r esponded i n 2012 by establishing uniform elig ibil i t y r e quirements for fast-track pleas for all defendants across the co u ntry

. S ee Memorandum f

or All United States Attorney s from J ames M. C o l e , Deputy Attorney General, at 2 (J an. 3 1, 2012) [ hereinafter “ Cole M e m o r a n d u m ” ], a v a i l a b l e a t h t t p : / / w w w

. j u s t i c e

. g o v / d a g/ f

a s t

track-prog

r a m.pdf.

W h ile the details may vary from d i strict to district, all fast-track p rog rams “a re based on the premise that a defendant who promptly ag r e e s t o participate in such a p rog ram saves the g overnment sig nificant and sca r c e

resources that c an be used to prosecute other defendants, a nd

. . . has demonstrated an acceptance of responsibility above and bey ond what is already taken into account by the adjustments contained in the Sentenci n g Guidelines.” Id. at 1. According to the D epartment o f J u stice, fast-track plea
ag reements have becom e an important nationwide tool to address the “ c o mpelling

, and otherwise potentially intractable, r esource issue” posed b y the number o f immig ration crimes on the federal criminal docket. 1 1 Id.

11 T h e g o v ern m en t h as also resp on d ed to th ese reso u rce ch a l l e n g es b y ap p o in tin g Sp ec i a l A s sistan t Un ited States A tto rn ey s t o h an d le crim in al
p ro secu tio n s. T h ese atto rn ey s m ay b e o n l o a n f ro m o th er g o v ern m en t

a g e n cies, o r m ay b e u n

p aid v o lu n teers. S

ee J o e Dav id so n , ‘S

p ecia l’ Assista n t Un ited S t a t e s A t t o rn eys W o rk fo r Free
, W A SH

. P O ST , J u ly 1 8
, 2 0 1 3

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 9

Because the object of a f ast-track plea is to achie v e g reater than normal efficiency throug h a lig hter than normal sentence, the parties i n a fast-track case ty pically encourag e the district court to impose the neg otiated sentence. F ederal Rule of Criminal Procedure 11 provides them with the means to do so. Rule 11 g overns the process for entering pleas and
sets forth requirements for the district court’ s a c c e p tance o f

a g uilty plea. S

ee F ed. R. C r i m

. P

. 1 1(a), (b). I t also
recog niz es three distinct ty pes of plea ag reements. See F ed. R. Crim. P. 11(c)(1). The g overnment may ag ree to dismiss

or n ot to bring further c h arg es; to m a k e a sentencing

reco m m e n d a t ion that does not bind the district court; or to make a sentencing rec o m mendation that binds the district court if the court accepts the ag reement. Id.

Specifically

, Rule 11(c)(1)(C) a uthoriz es the g overnment to “ag r e e t h a t a specific sentence or sentencing rang e is the appropriate disposition of the case, o r t h at a particular provision of the Sentencing G uidelines

. . . or sentencing factor does or does not apply .” The ag reement “is c onting ent until the court accepts” it. Freeman v. United States , 131 S. Ct. 2685, 2692 (2011) (plurality opi n i on). W hen presented with a Rule 11(c)(1)(C) ag r eement, the dis t r i c t court may accept the ag reement, reject t h e ag reement, or w ait to consider the ag reement until it has reviewed the presentence

r e p o rt. See F ed. R. Crim. P. 11(c)(3). I f the district court ultimately accepts the ag reement, it must impos e t h e recommended sentence. See F ed. R. Crim. P. 11(c)(4). I f it

u l t i mately rejects the ag r eement, it must g ive the defend a n tU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 10

the opportunity to withdraw his plea. S e e F ed. R. Crim. P. 11(c)(5). 1 2

W h ile Rule 11(c)(1)(C) may apply to any offense, it play s

a particularly important role in fast-track illeg al reentry cases. The D epartment of J ustice requires that Uni t ed States Att o r ney s retain the discretion to compel defendants w ho wish to p a r t i c i p ate in fast-track p rog rams to enter into Rule 11(c)(1)(C) ag reements. S ee Cole Memorandum at 4. I n

some judicial districts, fast-track defendants a r e i n fact required to enter into Rule 1 1(c)(1)(C) ag reements. 1 3 I n 2006, the Central District of California beg an to offer a Rule 11(c)(1)(C) ag

reement as its standard fast-track plea offer to

1 2 Sen ten ce barg ain s are a lo n g stan d in g , th o u g h co n tro v ersial, p ractice. S ee J osh u a D. A sh er, No te, Un b in d in g th e Bo u n d : Refra min g th e Ava ila b ility o

f S en te n ce Mo d ifica tio n s fo r Offen d ers W h o En t ered In to 1 1 ( c) ( 1 ) ( C ) Plea Ag reemen ts , 1 1 1 C OL UM

. L

. R E V

. 1 0 0 4
, 1 0 0 5

– 0 6
, 1 0 2 1

– 2 3 & n .9 0 (2 01 1 ). On e d istrict j u d g e h as d escrib ed Ru le 1 1 (c)(1 )(C) p l eas as “ th e best to o l b etw een th e ex trem es o f n o p ro secu tio n at all an d an ef

f o rt to ob tain th e m ost sev ere sen t en ce av ailab le u n d er th e law an d t h e Gu i d elin es.” J o h n Gleeso n , Th e S en t en cin g Co m m issio n a n d Pro secu to r ia l Discretio n : Th e Ro le o f t h e C o u rts in Po licin g S

en ten ce Ba rg a in s , 3 6 H OF ST RA L

. R E V

. 6 3 9
, 6 4 1 (2 0 0 8 ). B u t Ru le 1 1 ( c ) ( 1 )(C), lik e o th er p ro ced u ral pro v isio n s th at allo cate p o w er to pro s ecu t o rs to d eterm in e sen ten ces, also raises t h e co n cern th at “ th e pro secu to r b eco m es th e ad j u d icato r—m ak in g th e relev an t f actu al f in d in g s, ap p ly i n g th e law to th e f acts, an d selectin g th e sen t en ce or at least th e sen ten cin g r a n g e.” Rach el E. Bark o w , In s titu tio na l D esig n a n d th e Po licin g o f Pro secu to rs: Lesso ns fro m Ad

min istra tive La w , 6 1 S T A N

. L

. R E V

. 8 6 9 , 8 7 8 (2 0 09 ).

13 S ee Fa st-Tra ck Po licies fo r Illeg a l Reen try Ca ses by District

a n d C i r c u i t , D E F E N D E R S E R V I C E S O F F I C E ( D e c

. 2 0 1 3 )

, h t t p : / / www. f

d

. o r g / d o c s / s e l e c t

- t o p i c s / s e n t e n c i n g -r e s o u r c e s / fa s t

- t r a c k

p o licies- f o r- ille ga l -r e e n t r y -c a s e s-b y -d i s t r i c t -a n d -c i rcu it- %2 8 d ecember2 0 1 3 %2 9 .p d f

? sf v rsn =4

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 11

most defendants charg ed with illeg al reentry

. 1 4 A s f ar as we

are aware, this polic y remains in effect. I n the Central District and throug hout the N inth Circuit, Rule 11(c)(1)(C)

a g reements a

re a common w ay of resolving illeg al r e e n t r y prosecutions. See, e.g. , U n i t e d States v. Gonzalez

, 502 F

. App’x 665 (9th Cir. 2012); Unite d S tates v. Soto-Lopez
, 475 F

. App’x 144 (9th Cir. 2012); United States v. Martinez
, 357 F

. App’x 100 (9th Cir. 2009); United States v. CruzGramajo , 570 F .3d 1162, 1166–67 (9th Cir. 2009).

II.

W ithin this larg er co ntex t, enter (or, reenter) Morales. L ike so many others, Morales, a n ative and citiz en of Mex ico, has repeatedly crossed the southwest border into the United States without authoriz ation. After being removed from the United States in 1992, 2009, and 2 0 10, he ag ain entered

w i t h o ut inspection in 2 011. I mmig ration authorities apprehended him. The g overnment charg ed Morale s in an information w ith illeg al r eentry , in violation of 8 U .S.C. § 1326. The g overnment also provided notice t h at o ne o f Morales’s prio r r emovals had occurred subsequent to an ag g r avated felony conviction, thereby increasing the statutory

max imum penalty f

rom two y ea r s ’ imprisonment to twenty
y ears’ imprisonment. S

ee 8 U.S.C. § 1326(b)(2).

I n J a nuary 2012, Morales and the g overnment e x ecuted a written f ast-track plea ag reement under Rule 11 ( c )(1)(C). Morales ag reed to plead g uilty to the sole count o f illeg al reentry in the information at the earliest opportunity provided

14 S ee M emo ra n d u m Rep o rtin g Revisio n s to Illeg a l Reen try Fa st-Tra ck Pro g ra m in C

en tra l District o

f Ca lifo rn ia
, 2 1 F E D

. S E NT ’ G R E P

. 3 4 9
, 3 5 0 (2 0 0 9).U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 12

by the g o vernment. H e agr eed to waive his constitutional rig hts to be indicted by a g r and jury

, to contest his g uilt at trial, to confront adverse witn e s ses, to testify on his o wn b ehalf, a nd to avoid self-incrimination. Morales a l s o promised not to pursue any affirmative defenses, to seek the suppression o f evidence unde r t h e F o urth or F ifth Amendments, or to pursue any other p r e t r ial motions. F inally

, he a g reed to w aive his rig ht to appeal his conviction. Morales acknowledg e d that his conviction mig h t subject him to deportation.

I n return, the United States promised t o recommend a particular sentence that would bind the district court unless it rejected the ag reement. The parties ag reed on the applicable provisions of the United States Sentencing Guidelines. They also ag reed that Morales’s tot a l offense level under the Guidelines was nine. This included the four-level reduction advised b y the Guidelines for participation i n a fast-track
prog r am. See U.S.S.G. § 5K3.1. T h e parties ag reed that the probation office could p repare a presentence report (P S R) that addressed only Morales’s criminal history

, and that no f urther factual development of the record was required. The parties ack n o w ledg ed that the district court would calculate Morales’s criminal history categ ory

. The intersection of the criminal history categ ory with Morales’s sti p u lated total offense level would determine his sentencing r ang e under the Guidelines. See U.S.S.G. ch. 5, pt. A.

Morales and the United States a g reed that the appropriate disposition of the case was a prison term equal to the low e nd of the a pplicable Guide l ines rang e , plus the statutory

max imum of three y ears of supervised release, see 18 U .S.C. § 3 5 8 3 ( b)(2). They did so despite the provision of the Sentencing Guidelines advising ag ainst supervised release inU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 13

cases involving alie n s who, like Morales, would likely be deported aft e r i n c arceration. See U.S.S.G. § 5D1.1(c). Morales acknowledg ed that the c onditions of his supervised release would include compliance with the immig ration laws of the United States.

B o t h p a rties ag reed to recommend that the district court impose the stipu l a t e d sentence. They also ag reed that they would not “seek, arg ue, or sug g est in a n y way , either orally

or in writing

, that any other specific offense c haracteristics, adjustments, departures, or variances in senten c e

. . . be imposed, or that the Court impose a sentence other than what has been stipulated to b y the parti es h e r e in.” B oth reserved the rig ht to “supplement the facts” by suppl y i n g the court with relevant information, as well as the rig ht to “correct any and a ll factual misstatements” relating to t h e d i s trict court’s Guidelines calculations. I f the district court i m p o s e d the stipulated sentence, b oth parties waived the rig ht t o a p p e al
any p art of the sentence ex cept the cou r t ’ s calculation o f Morales’s criminal history categ ory

.

The district court provisionally accepted Morales’s plea of g uilty

, while cautioning M o r ales that it reserved the rig ht
to reject the Rule 1 1 ( c )(1)(C) plea a g reement and that, if it did so, Morales would have an opportunity to withdraw his plea. Several weeks l a t e r, Morales’s probation officer disclosed his presentence report to the parties and the district
court. The PSR detailed Moral e s ’ s criminal history

, which included felony convictions f or b urg lary

, receiving stolen property , and the sale of he r o i n , as well as a misdemeanor domestic violence conviction. The prob ation officer determined that Morales h a d three criminal history p o ints, resulting in a criminal history c atego r y o f I I and, w ith the fast-track downward a djustment in offense level, anU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 14

applicable Guidelines rang e of six to twelve months in prison. The probation officer r e commended that the district court impose the stipu l ated low-end sentence of six months’ imprisonment plus three y e ars of supervised release.

T h e g overnment then filed its sentencing position in the d i strict c ourt. The g overnment recommended a low-en d
sentence of six months’ imprisonment and a three-y ear period of supervised release, as it had a g reed to do. I t then went on to detail “[ d ] efendant’s 2 0 -y ear criminal histor y ” already identified in the PSR. Discussing Morales’s 1993 conviction for possession of heroin for sale, the g overnment noted that Morales had been “arrested w ith 56 balloons filled with over 9 g rams of heroin

. ” A ddressing Morales’s 1995 domestic violence conviction, the g o vernment ex plained that Morales “alleg edly c hoked the mother of his t h en-infant d aug hter,
g rabbed her f

ace, shook her vig orously

, shoved her ag ainst a wall, and c ut her lip.” Morales’s c r i m inal history

, the
g overnment arg ued, “communicates a c o n sist e n t d i s r e g a r d for both the criminal and immig ration laws of the United States.”

F urthermore, thoug h it arg ued that a six

- month sentence

was reasonable, the g overnment also noted that “defendant’s demonstrated propensity for d rug trafficking and theft-related offenses is also c oncern i n g, and an appropriate sentence is warranted to ensure sufficient deterrence to future criminal conduct

. ” A n d

, to support the recommended term o f supervised r elease, the g overnment stated that Moral e s “ p o s e s

a dang er to the community because his criminal history includes both drug trafficking and battery .”

Defense c ounsel promptly emailed the prosecutor to

ex p ress his view that the go v e r nment had breached the plea
ag reement by failing to recommend, in substance, a sentenceU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 15

at the low end of the Guidelines rang e. Counsel urg ed th e g overnment to withdraw its sentencing position a nd file a

new one. The prosecutor denied breaching the agr e em ent. Shortly thereafter, th e g overnment filed a supplemental sentencing position without w ithdrawing the orig inal. I n its supplemental memorandum, the g overnment c or r e c ted two technical errors and reiterated its support f or a “low-end 6

- month p rison term” and a three-y ear p eriod of supervised release. The g o vernment sta t e d t hat it had “consistently advocated” for this sentence and that its prior m emorandum had “analy

z e[ d] defendant’s cr iminal h istory because criminal history is a major component of a ny t h oroug h [ sentencing ] analy sis.”

A few weeks later, the district court informed the parties that it would n ot a ccept the terms of the R u l e 11(c)(1)(C)
ag reement and that Morales therefore had the rig ht to withdraw his g uilty p lea. Defense counsel immediately

m o v e d for specific performance of the plea ag r eement,

a r g u i n g t h a t t h e g o v e r n m e n t ’ s i n i t i a l s e n t e n c i n g memorandum had breached it. At a hearing o n t h e m o t ion, the district court ex pressed its v iew that Rule “11(c)(1)(C) is

a d ifferent kind o f p lea ag reement,” and that it retained discretion to reject the ag r e em ent irrespective of the
g overnment’s statements. Defense c o u n sel arg ued that “the breach[ ] jurisprudence is no less applicable in the 11(c)(1)(C)
contex t than it is in any

other plea ag

reement contex t.”

The d istrict court denied Morales’s m o t i o n for specific performance of the plea ag reement in a written or d e r. I t

ex p lained: “T h e Government’s brief description o f Defendant’s criminal his t o r y a n d p r i o r immig ration violations had no effect on this Court’s r ejection of the Rule 11(c)(1)(C) plea.” Rather, it had determined that the stipulated sentenceU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 16

w a s inadequate “ on the basis of its independent review” o f the PSR. The district c ourt noted that “all of the cases cited by Defendant

. . . did not involve[ ] a Rule 11(c)(1)(C) p lea.” 1 5

F our day s later, a t the sentencing hearing

, M o r a les decline d t o w ithdraw his g uilty p lea when g iven the

o p portunity to do so. The district court sentenced h i m t o twenty -one months o f incarceration—three-and-a-half times long er than the stipulated p rison term—and three y ears o f supervised release. The twen t y -one month p rison term was equal to the hig h end of the Guidelines rang e that would have applied without th e f

o u r-level d ownward adjustment for a fast-track plea. Morales timely appealed.

III.

W e have jurisdictio n t o review Morales’s sentence pursuant to 18 U.S.C. § 3742(a). B ecause Morales’s counsel objected to the g overnment’s statements before the district court, w e review de n ovo whether the g over nment b reached the plea ag reement. United S tates v. W hitney

, 673 F .3d 965, 970 (9th Cir. 2012).

IV.

A.

“[ C] riminal justice today is for the most part a sy stem of pleas, not a sy stem of trials.” Lafler v. Co o p e r , 1 3 2 S. Ct. 1376, 1 388 (2012). I n the vast majori t y of criminal cases, a

15 W e can n ot d iscern f

ro m th e reco rd w

h eth er th e district co u rt fo u n d th at t h ere w as n o b reach o r th at an y b reach w as h arm less. T h e dif f eren ce is im m aterial to o u r an aly sis, as eith er co n clu sio n w as erro r.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 17

prosecutor’s promise of less harsh treatm e n t induces the defendant to waive h is constitutional rig hts and ad m i t g uilt. Plea ba r g a ining is desirable because it c onserves resources, encourag es prompt and f i n al resolution of criminal cases, helps avoid the “corrosive impact” of prolong ed pretr i al detention, a

nd abates the risk to public safety caused b y leng thy pretrial release. Santobello v. New Y ork

, 404 U.S. 257, 260–61 (1971). “ However, all of these consid e r ations
presuppose f

airness” in the plea b arga i n i ng process. Id. at 261. A ccording ly

, when the p r o s e cutor makes a promise to the defendant, that “promise must be fulfilled.” I d

. a t 262. The integ rity of the criminal justice sy stem depends upon the
g overnment’s strict compliance w i t h the terms o f the plea
ag reements into w hich it freely enters. See W hitney

, 673 F .3d at 974.

Plea ag reements are “essentially co n t r acts.” Puckett v

. United States
, 556 U.S. 129, 1 37 (2009). W e enforce their literal terms, construing any ambig u ities in th e defendant’s favor. See United States v. Franco-Lopez
, 312 F .3d 9 8 4, 989 (9th Cir. 2002). I n interpreting the ag reement and crafting an appropriate remedy for any breach, our task is to “secure the benefits p romised [ th e d e f endant] b y the g overnment in

ex c h a ng e for surrendering

his rig ht to trial.” Id

.

The g overnment breaches its ag reement with the defenda nt if it promises to recommend a particular disposition of t h e c a se, a nd then either fails to recommend that disposi t i o n or recommends a different one

. See, e.g. , United States v. J

o hnson

, 187 F

. 3d 1129, 1 1 3 5 ( 9th Cir. 1999). S ee generally 5 W A

Y N E R. L A F A

V E E T A L ., C R

I M I N A L P R O C E D U R E § 2 1.2(d) (3d ed. 2013). W hen it offers to recommend a specific sentence, the g o vernment induces the defendant to forfeit his constitutional rig hts in ex c h an g e forU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 18

a “united front.” United S tates v. Camarillo-Tello

, 236 F .3d 1024, 1028 (9th Cir. 2001). “ [ W ] hen the sent e n cing court hears that both sides b elieve a certain sentence is appropriate and reasonable in the circumstances, this is more persuasive than only the defendant arg uing for that sentence.

. . . [ T] his ‘united front’ is the defendant’s benefit of the barg ain.” Id.

The g o vernment’s promi s e to r ecommend a particular disposition can be broken e ither ex p licitly or implicitly

. See W hitney

, 673 F .3d at 971. T h e go vernment is under no oblig ation to m a k e a n ag reed-upon recommendation “enthusiastically .” J

o h nson , 187 F

. 3d at 1135. However, it
may not superficially abide b y i t s p romise to recommend a particular sentence while also making statements that ser ve

no prac t ical purpose but to advocate for a harsher one. See W hitney

, 673 F

. 3d at 971; U nited States v. Mondragon

, 228 F

. 3d 978, 981 (9th Cir. 2000); Johnson

, 187 F .3d at 1135. That is, the g overnment breaches its barg ain w i t h the d e f e n d a n t i f i t p u r p o r t s t o m a k e t h e p r o m i s e d recommendation w hile “ ‘winking ’ at the d i s t rict court” to impliedly r equest a different outcome. United States v. Has No Horses
, 261 F .3d 744, 750 (8th Ci r

. 2 0 01). An implicit b reach of the plea ag reement o ccurs if, for ex ample

, t h e go v ernment ag rees to recommend a sentence a t the low e n d of the applicable Guideline s r a n g e, but then makes inflammatory comments about the defendant’s past o ffenses that do not “provide the district judg e with a ny new information or correct factual i n a ccuracies.” W hitney

, 673 F .3d at 971 (quoting M ondragon , 228 F .3d at 980).

B

.

As the district court observed, we ha v e not previously applied the pr i n c i ples g overning the b reach of pleaU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 19

ag reements to Rule 11(c)(1)(C) ag reements

. 1 6 The only log ical conclusion, however, is th a t those principles a pply with equal force in this contex t. O ur decisions in Mondragon and W hitney confirm that the g overnment breached its
ag reement with Morales by deny ing him the united front for which he barg ained. T h e g overnment’s statements in this

c a se did at least as much to recommend a harsher tha n ag reed-upon sentence as the statements that breached the plea
ag reements in Mondragon and W hitney

.

I n Mondragon

, the g ov ernment promised the defendant that it w ould “make no recommendation reg arding [ the]

s e n tence.” 2 28 F .3d at 979. After defense cou n s el characteriz ed the defendant’s previous c rimes as “petty ,” the district court aske d t h e g overnment whether it had any comment. I

d. The g overnment pointed out in response that the d efendant had frequently run fr o m law enforcement, resisted arrest, and skipped c ourt dates. See id. W e rejected the g o vernment’s arg ument that its comments ser ved the leg itimate purpose of r esponding to the c o urt’s question o r correcting factual misstatements by o pposing counsel. S ee id.
at 980. B ecause the “ prosecutor’s c o mments did not provide the district judg e with any new inf o r m a t i on or correct any factual inaccuracies,” b ut s imply repeated information already contained in the P S R
, we concluded that “the
comments could have been made for only one p u rpose: to

1 6 In Un ited S ta t es v. Go n z a lez-Ag u ila r , 7 1 8 F.3 d 1 1 8 5 (9 th Cir. 2 0 1 3 ),

w e rev i ew ed a sim ilar alleg ed b reach o f a Ru le 11 (c)(1 )(C) ag reem en t f or p lain erro r. We d eclin ed t o d ecid e w h eth er t h e g o v ern m en t h ad b reach ed th e ag reem en t b y in clu d in g ag g rav atin g f acts in i ts sen ten cin g

m e m o ran d u m b ecau se w e h eld th at th e d ef en d an t co u ld n ot sh o w a n y b reach af f ected h is su

b stan tial rig h ts. Id

. at 1 18 7

. Here, b ecau se d ef en s e

co u n sel tim ely o bj ected b e l o w , w e ad d ress th e q u estio n s lef t o p en in Go n za lez-Ag u ila r

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 20

influence the district court to impose a harsher sentence.” Id. B y impl icitly making a sentencing recommendation, the
g overnment breached the plea ag reement. Id.

I n W hitney

, t h e government promised the defendant it would recommend a sentence at the low end of the applicable Guidelines rang e

. See W hitney

, 673 F. 3 d a t 968. After defense counsel stated t h a t the defendant was merely a nonviolen t thief, a

nd “ n ot a g ood thief,” the g overnment responded to “rebut[ ] ” the claim

, ar guing that the defendant

was in fact a “g ood thief.” Id. at 969–70. As in Mondragon

, the prosecutor’s comments provid e d no new f actual information to the district c ourt. See id. at 971. W e rejected

as “dising e nuous” the g overnment’s arg ument that it was compelled to provide an a

rg ument to “justify e ven its low-end
g uideline sentence recommendat i o n

. ” Id. at 971–72. The district court had g iven no indication that it was considering imposing a sentence low e r than the g overnment’s recommendation; the defendant could not h a v e r equested a below-Guid e l i n e s sentence under the terms of the plea
ag reement; and the probation office recommended a sentence

more than double the low end of the G u i d e lines rang e. See id. at 9 72. W e therefore concluded that t h e p r o s ecutor’s critical c omme n ts “could only have been intended” to persuade the district court to impose a hig her sentence than the g overnm en t h ad p r omised to recommend, “and not to g uard ag ainst an unsolicited downward departure.” 1 7 Id.

17 W e are n o t p ersu ad ed b y th e g o v ern m en t’ s attem p t to d istin g u ish W h itn ey o n th e b asis th at th e p ro secu to r th ere also sep arately b reach ed th e p lea ag reem en t b y d iv u lg in g co n f i d en tial in f

o rm atio n

. W

h itn ey an aly zed th e tw o sep arate b r e a c h e s o f th e p l ea ag reem en t in d ep en d en t l y of each

o th er. S ee W h itn ey , 6 73 F.3 d at 9 7 0

– 7 1

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 21

Here, the parties agreed to recommend that Morales receive a pr i s on term equal to the low e nd of the applicable Guidelines rang e plus a three-y e a r term of supervised release. The g overnment breached its a g reement, however, throug h its repeated and inflammatory references to Morales’s cri m i n al history in its sentencing memorandum. L ike Mondragon a nd W hitney

, all of the aggr a vating factual information in this memorandum had already b een p rovided to the district court in the PSR. Moreover, there w as no r eason to believe that the district court was considering imposing a sentence less harsh than the stipulated o n e

. N or were the g overnment’s
statements made off the cuff o r in r esponse to commentary o r arg ument by the defense. Rather, g iven the o p p ortunity to arg ue f or the low -e n d sentence it had promised to recommend, the g overnment o ffered a series of prejudicial “statements related to the seriousness o f the defendant’s prior record.” W

hitney

, 673 F .3d at 971. The central theme of the
g overnment’s sentencing position was t h a t Morales w as a dang erous recidivist who had spent twenty y ears flouting the law and menacing others. W hether inten t ional or not, the
g overnment breached the plea ag re ement by implicitly recommending

a hig h er sentence than ag reed upon.

W e recog niz e that this case differs from W hitn e y i n a sig nificant respect: Here, the g overnment bo u n d itself to recommend not only a low-end Guidelines sentence, but also

a statutory max imum three-y ear t er m of supervised release. This supervised release term is contrary to the Guidelines, which provide that “[ t] he court ordinarily should not impose

a term o f supervised r elease” when a defendant, like Morales, is “likely [to] be deported after imprisonment.” U.S.S.G. § 5D1.1(c) (emphasis added). The g overnment contends that the inflammatory material was properl y i n cluded in theU N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 22

sentencing memorandum to support the r ecommended threey ear term of supervised release. W e disag ree.

As an initial matter, this d oes not appear to have been the
g overnment’s actual motivation for the offending statements, almost none of which a

ppear in the portion of the sentencing memorandum that dis c u s s e s s u p e r v i s e d r elease. F urthermore, while the g overnment could permissibly make some f actual reference to Morales’s criminal h istory to justify the stipulated term of supervised re l e a s e, the g overnment offers

no justification for the depth and tone of its discussion. That Morales possessed 56 balloons o f h e r o in when arrested for selling drug s, and that his misd e meanor domestic violence conviction was for choki n g a n d shoving the mother of his infant daug hter, are prejudicial details likelier to inflame than
to provide information relevan t to the imposition o f supervised r elease. See U.S.S.G. § 5 D1.3(b). And the prosecutor’s references to Morales’s “ p ropensity for d rug trafficking ” and “consistent disreg ard for both t h e criminal and immig ration laws of the United States” a re merely pejorative editorializ ing

. 1 8

18 T h e g o v ern m en t co u ld

, f o r ex am p le, h av e said th e c r im in al h isto ry

w as f o u n d in th e P SR an d in co rp o rated it in its sen ten cin g m em oran d u m b y ref eren ce. T h e disc u s s i o n o f Mo rales’ s crim in al h isto ry in th e PSR in clu d ed n o ed ito rializin g o r i n f lam m ato ry lan g u ag e. In d eed

, th e p ro b atio n o f

f ice ad o p ted th is ap p ro ach in j u stif y in g i ts se n t en cin g

reco m m en d atio n

to th e d istrict co u rt:

In reg ard to Mo rales’ crim in al h isto r y , h e h as f elo n y

co n v ictio n s f o r d ru g s a les, receiv in g sto len p ro p erty , an d co m m ercial b u rg lary . He also h as a m i sd em ean or

co n v ictio n f o r sp o u sal ab u se. T h e lo n g est sen ten ce h e receiv ed in th e p ast w as a y ear in co u n ty j ail. . . .U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 23

Most important, the p a rticular contex t of this fast-track plea ag re e m e nt neg ates the g o vernment’s purported justification for its statements. Morales was induced to enter into a fast-track plea b y th e o f f e r o f a binding sentencing recommendation resulting in a lower p rison term than he would receive if he pleaded g uilty later. To his detriment, Morales stipulated to the three-y ear t e r m of supervised release even thoug h he knew he would be deported following his release. 1 9 As the parties a c knowledg ed in briefing and at oral arg u ment, a three-y ear t e r m of supervised release is

After co n sid erin g th e n atu re an d circu m stan ces o f Mo rales’ o f

f en se as w ell as h is h isto ry an d ch aracteristics, a six m o n th s en ten ce f o llo w ed b y th ree y e a r s su p erv i sed release is reco m m en d ed as su f

f icien t b u t n o t g reat e r t ha n n ecessary

. A sen ten ce o f th is len g t h i s th e sam e l e n g th as th e actu al tim e serv ed f or th e o n e y ear co u n ty j ail sen ten ce th at Mo rales serv ed in th e p ast an d it is h o p ed it w i ll h av e a n a d eq u ate d eterren t ef

f ect an d also p ro m o te resp ect f o r th e law

. . . .

T h e ad v iso ry g u id elin es d isco u rag e a t e rm of

su perv ised r e l e ase w

h en n o t req u ired b y statu te an d

w h en th e d ef

en d an t is a d ep o rtab le alien

. Ho w ev er, a th ree y ear term is reco m m en d ed a s a g r e e d to b y th e p arties an d as a t erm o f th is len g t h w i l l p ro tect th e p u b lic in lig h t of Mo rales’ p rio r co n v ictio n s f o r d r ug sales.

1 9 A m an d ato ry co n d itio n o f su perv ised release is th at t

h e d ef en d an t n o t

co m m it an y f ed eral, st a t e , o r lo cal crim e. S ee 1 8 U.S.C. § 3 5 8 3 (d ). Mo rales’ s su

p erv ised release also in clu d ed th e ro u tin e co n ditio n th at h e

co m ply w i th all im

m ig ratio n ru les an d reg u latio n s an d n o t reen t er th e Un i ted States illeg ally

. Mo rales th ereb y ag reed to ad d itio n al p u n ish m en t sh o u ld h e ag ain

b e cau g h t u n law f

u lly retu rn in g to th e Un ited States. H e

co u ld b e i n carcerated f

or v io latin g th e term s of h is su p erv i sed release, as

w ell as su b j ect to an o t

h er § 1 3 2 6 p ro secu tio n

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 24

apparently a c omm o n p rovision of fast-track pleas in illeg al reentry cases in the Central District of California

. 2 0 The
g overnment h ad no reas o n to call special a ttention to the
ug liest aspe c t s of Morales’s past to justify what is, in these circumstances, a routine recommendation.

I ndeed, g iven the g o vernment’s promise o f leniency

, it is notable that its sentencing memor a ndum contained no mitig ating information at all. Rather, it emphasiz ed that Mo r ales, a “dang er to the community ,” needed to be “deterr e [ d ] ” because of his “20-y ear criminal history

, ” his “consistent disreg ard” for the law, an d his criminal “propensity .” The reader is left to wonder why t he
g overnmen t believed a low-end Guidelines sentence was appropriate in the first p lace. According ly

, we conclude that,

as a whole and in contex t, the g overnment’s pejorative
comments about Morales’s c riminal history and detailed descriptions of his prior o ffenses served “no purpose” but to
arg ue for a h a r s her punishment than it had ag reed to recommend. W

hitney

, 673 F .3d at 971. B y implicitly advocating for a sentence other than t he stipulated o ne, the
g overnment breached the plea ag reement.

The g ove r n m ent also breached its ag reement with Morales in a second, independent way

. The g overnment did
not only ag ree to recommend a particular sentence, as in W hitney

, or to avoid recommending a sentence, a s in

20 A rev iew o f o u r cases co n f irm s th at a t

h ree- y ear term o f su

p erv i s ed release is n o t u n co m

m o n in illeg al reen try p ro secu tio n s in th e Cen t ral District of Calif

o rn ia

. S ee, e.g

. , Un i ted S ta tes v. Gu tierrez
, No

. 1 3

- 50 0 08 ; U n i t e d Sta tes v. Ca rd

en as , 13

- 5 0 0 45 ; U

n ited S ta tes v. Ca n a s , 5 40 F. A p p’ x 78 9 (9 th Cir. 2 0 1 3 ); Un ited S t a t es v. Meza
, 3 1 9 F. A

pp ’ x 6 9 5 (9 th Cir. 2 0 0 9 ); Un i ted S ta tes v. Ceja -Licea
, 2 6 4 F. A p p ’ x 59 4 (9 th Cir. 2 0 0 8 ).U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 25

Mondragon

. I t also ex pressly promised in the plea ag reement not to “seek, a

rg ue, o r suggest in any way ” that th e district
court impose a “sentence other than w hat has been stipulated
to by the p arties herein.” W e e nforce the literal terms of this promise and require the g overnment’s strict compliance with it. See W hitney

, 673 F .3d a t 974; Franco-Lopez
, 3 12 F

. 3 d at 989.

Even if the infla m m a t o ry lang uag e in the g overnment’s sentencing position had partially served a leg itimate purpose,

w h ich it did not, it surely also “sug g est[ ed] ” that the distric t court i m p o s e a harsher sentence. The g overnment freely undertook a b r oad commitment to Morales to avoid even the implication that a sentence other than the stipulated one mig ht be appropriate. See W E B S T E R ’ S T H I R D N E W I N T E R N A T I O N A L D I C T I O N

A R Y 2286 ( 2002) (defining “ sug g est” as “to mention

. . . as a possibility

, ” “put forwar d by implication,” o r “propose

. . . as desirable or fitting ”). At a m inimum, b y characteriz ing Morales as a dang e rous criminal, the

se n t encing memorandum sug g ested in some way that a sentence o ther than six months in prison could b e advisable. Under this provision of the contract between Morales and the
g overnment, it is irrelevant whethe r t h ese statements also served another purpose. The r e f ore, even if we did not conclude that the offending lang u ag e had “no practical purpose” but to arg ue implicitly for a harsher than stipulated punishment, we would still c o nclude that the g overnment breached the ex

press terms of this plea ag reement.

C.

The g overnment’s breach of th e p l e a ag reement was neither cured nor curable before the district court.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 26

The g o vernment filed a supplemental sentencing position in the d istrict court in response to d efense counsel’s objection. This supplemental filing did not acknowledg e, let alone rectify

, the g overnmen t ’s previous errors. I t merely corrected two clerical mistakes and arg ued th a t t he
g overnment’s initial sentencing m e morandum had properly “analy ze[ d] ” Mora les’s criminal h istory to support the recommended three-y e ar term of supervised r e l e a se. The
g overnment’s denial that it h ad breached the ag re e m ent did
not restore the united front for which Morales had barg ained.

Moreover, even if the g overnment had acknowledg ed its

error in its suppleme n t al memorandum, doing so would not have cured the breach. Only “ some breaches may be curable
upon timely objection” to the district court. Puckett

, 5 5 6 U.S.
at 140 ( emphasis in orig inal). F or ex a mple, if the prosecution makes a “mere slip of the tong ue or t y p o g raphical error,” United States v

. Alcala-Sanchez

, 666 F .3d 571, 576 (9th Cir. 2012), or “simply forg [ ets] its commitment and is willing to adhere to the ag reement,” Puckett

, 556 U.S. at 1 4 0
, t h e prosecution may cure the inadvertent mistake b y p r omptly discharg ing its oblig ations. B u t a breach like the one that occurred here cannot be undone. Once the prosecution has forcefully arg ued for a sentence o ther than the stipulated o ne

a n d has d enied the defendant a united front, “one really
cannot calculate how the g o vernment’s error and breach may have affected the perceptio n s of the sentencing judg e.” Alcala-Sanchez

, 666 F .3d at 577. That the dist r ict court claimed not to have been influenced b y the g overnment’s sentencing memorandum is simply “irrelevant.” CamarilloTello

, 236 F

. 3d at 1028; a ccord Santobello

, 404 U.S. at 262; Gunn v. Ignacio
, 263 F .3d 965, 969–70 (9th Cir. 2001).U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 27

Nor does Morales’s de c ision not to withdraw h is plea before his sentence w as imposed cure the g overnment’s breach. 2 1 Morales barg ained for the opportunity to withdraw his plea if the district court rejected the plea ag ree m ent despite the g overnment’s support. To conclud e t hat Morales’s choice not to withdraw his plea somehow n eg ates the b r e ac h w ould force Morales to b ear the burden of the
g overnmen t ’ s error. I ndeed, it would effectively license the
g overnment to v iolate Rule 11(c )(1)(C) ag reements with impunity

, as the d efendant would be c ompelled either to accept the result of the proceeding s infected by the breach o r to risk p roceeding to t r i al o r attempting to neg o tiate a new ag reement with no leverag e

. W e decline to “lessen the
g overnment’s duty o f strict compliance” in this manner. Alcala-Sanchez , 666 F

. 3d at 577.

V.

W e do not review the br each of a plea ag reement for harmless e rror on appeal. See, e.g. , Mondragon

, 228 F .3d at 981. Rather, “automatic reversal is warranted when objection
to t he Government’s breach of a plea ag reement has been preserved.” Puckett

, 556 U.S. at 141 (cit i n g Santobello

, 404 U.S. at 261–62). F urth e rmore, “case law requires” that
any further proce e d ing s occur before a d ifferent judg e, even if w e h av e n o doubt that the first district judg e treated the defendant fairly a n d impartially

. Alcala-Sanchez

, 666 F .3d
at 5 77 n.2 ( q

uoting United States v. Johnson

, 187 F

. 3d 1129, 1136 n.7 (9th Cir. 1 999)); ac c o r d W h itney
, 673 F .3d at 968

21 On ce th e d istrict co u rt rej ected th e p lea ag reem en t, as d istin ct f ro m th e p lea itself

, Mo rales’ s g u ilty p lea b ecam e a “ n ak ed ” p lea, u n acco m p an ied b y an y w aiv er o f ap p ellate rev iew

. S ee In re Va sq u ez-Ra m irez
, 4 4 3 F.3 d 6 9 2 , 6 9 7 (9 th

Cir. 2 0 0 6 ).U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 28

n

. 1

. O nce the district judg e has seen or heard the offend i n g words that denied the defendant th e b e n efit of his barg ain,
any further proce e d i n g s before him would necessarily be tainted by the g overnment’s breach. The only way to undo the damag e is to reassig n the case.

W h en the district court rejects a Rule 11(c)(1)(C) plea
ag reement after overruling the defendant’s objecti o n t o an alleg ed breach, the defendant may appeal the district court’s order rejecting the p lea ag reement after the district court has entered judg ment and imposed a sentence. See United States

v. Samu e l i
, 5 8 2 F

. 3d 988, 993–94 (9th Cir. 2009); I n re Morgan
, 506 F. 3 d 705, 708–12 (9th Cir. 2007). W hen the district court finds tha t the g o v ernment breached a Rule 11(c)(1)(C) ag reement and the defendant timely moves for specific p erformance, the district court must g rant the motion, order the g overnment to fulfill its o b l i gations under the
ag reement, and immediately transfer the case t o a different district judg e to ensure that the decision to accept or reject the
ag reement will be untainted b y the breach. 2 2 See Puckett

, 556 U.S. at 140. I f the district court fails to g rant the defendant’s motion for specific performance and instead rejects the Rule 11(c)(1)(C) a g reement, it commits a n error of law a

nd thereby abuses its discretion. See Perry v. B r o w n , 667 F

. 3d 1078, 1084 ( 9th Cir. 2012) (“[ A] n error o f law constitutes an abuse of discretion.”).

2 2 Mo rales’ s co u n sel d id n o t seek th e co rrect rem ed y b ef o re th e d istrict

co u rt, b u t in stead su g g ested th at th e d istrict co u rt w as req u ired to im p ose

a six

- m o n th sen ten ce. T h e g o v ern m en t ’ s b reach d o es n ot strip th e d istrict

c o u rt o f its d i s cretio n to accep t o r rej ect t h e p l ea ag reem en t; it m erely
req u ires p ro m

p t reassig n m en t

so th e co u rt’ s d iscretio n

m ay b e ex ercised in d ep en den tly

o f th e g o v ern m en t’ s b reach

.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 29

V a catur of the defendant’s sentence alone i s a n inadequate remedy for the district court’s erroneous rejection of a Rule 11(c)(1)(C) ag reement a fter the go v e rnment breaches the plea ag r eeme n t. B y entering into a Rule 11(c)(1)(C) ag reement, th e defendant barg ains for a binding sentencing stipulation and for the opportunity to withdraw his
g uilty plea if the district court rejects the stipulation after the
g overnment has a d vocated for it. I f we were to v a cate only the d e fendant’s sentence and the g overnment were to perform its oblig a t i ons under the plea ag reement before a different judg e on remand, the district court would still r e tain the discretion not to accept the stipulated sentence. The defendant would b e un a ble to withdraw his plea, however, because h e is a lready subject to a judg ment of conviction. A remand for resentencing only would therefore f ail to “ secure the benefits p romised” the defendant, leaving him in a worse position than if the g overnment h ad not committed the breach. Franco-Lopez , 312 F .3d at 989.

According ly

, when a d efendant timely objects, moves for specific performance, and successfully appeals the district court’s post-breach order rejecti n g a Rule 11(c)(1)(C) plea
ag reement, the appropriate remedy is to vacate the conviction and sentence a

nd remand for further proceeding s b efore a different ju d g e

. 2 3 The defendant must have the opportunity

2 3 W e h av e su g g ested th at, w h en th e d istrict co u rt erro n eo u sly rej ects a Ru le 1 1(c)(1 )(C) ag reem en t f o r reaso n s u n

related to an y b reach

, “ an y leg ally co g n izab le h arm can be rem ed ied o n direct o r co llateral rev iew of

w h atev er sen ten ce th e d istrict co u rt u l tim ately im p o ses.” In re Mo rg a n , 5 0 6 F.3 d 7 0 5
, 7 1 3 (9 th Cir. 2 0 0 7) (em p h asis ad d ed ). Rev iew o f th e

sen ten ce alo n e m ay p ro v id e a su f f icien t rem ed y u n d er th o se circu m stan ces b ecau se th e d ef

en d an t h as n o t b een d en ied t h e b en ef it o f h is b arg ain w i th th e g o v ern m en t, w

h ich d o es n o t an d can n o t p ro m ise th at th e d istrict co u rt

w ill n ot err.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 30

to withdraw his plea after the district court ex ercises its discretion to accept or reject the ag r eement i n a m anner unaffected by

the g overnment’s breach.

I n this case, however, Morales appealed only his sentence and d id not seek vacatur o f h is conviction. W e therefore vacate only his sentence and remand for resentencing before a different district judg e.

VI.

T h e Department of J ustice has p rosecuted an increasi n g number of federal immig ration crimes in recent decades. T o alleviate the resulting strain on the criminal justice sy stem, it recommends substantial sentencing discounts for defendants who quickly plead g u ilty and waive important constitutional and procedural rig hts. F ast-track ag reements, including those pursuant to Rule 11(c)(1)(C), serve the interests of all involved. The g overnment is oblig ated to a dher e s t r i c tly to their terms, just as it must—and usually does—h o n o r its promises under all plea ag reements.

The purpose of a fast

- t r a c k plea is to achieve unusual

e f ficiency throug h unusual leniency

. Absent ex ception al circumstances, therefore

, the g overnment should have little need to colorfully recount the details of the d e f e n dant’s criminal history in its sentencing position in a fast-track c ase. I n this case, the g overnment’s inflammatory dis c ussion o f Morales’s p r evious crimes served n o practical purpose but to

ar gu e implicitly for a harsher punishment than the government had ag reed to recommend. I t also viola t e d t h e g overnment’s e x press promise not to sug g est in any way that the district court impose a sentence other than the stipulated

one.U N I T E D S T A T E S V

. M O R A L E S H E R

E D I A 31

Morales w ould ordinarily be e n t i t led to v acatur of his conviction and sentence and a r e mand for further proceeding s before a different district judg e. B ut here, in lig ht of the only remedy Morales r equested, we vacate his sentence. On remand, the Clerk of the United States District Court for the Central District of Ca lifornia shall reassig n the case to a different district judg e.

VACATED AND REMANDED with instructions.