FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL GABRIEL MORALES HEREDIA,

AKA Alejandro Montada Heredia,

AKA Alejandro Montada, AKA Paul

Gabriel Morales, AKA Paul Heredia

Morales,

Defendant-Appellant.

No. 12-50331

D.C. No.

8:12-cr-00006-

SVW-1

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

May 15, 2014—Pasadena, California

Filed October 8, 2014

Before: Alex Kozinski, Chief Judge, and Kim McLane

Wardlaw and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Wardlaw
2 UNITED STATES V. MORALES HEREDIA

SUMMARY*

Criminal Law

The panel vacated a sentence for illegal reentry in

violation of 8 U.S.C. § 1326, and remanded for resentencing,

in a case in which the defendant and the government executed

a fast-track plea agreement under Fed. R. Crim. P.

11(c)(1)(C).

The panel held that the government breached the plea

agreement through its repeated and inflammatory references

to the defendant’s criminal history in its sentencing

memorandum, serving no practical purpose but to argue

implicitly for a higher punishment than it had agreed to

recommend. The panel held that the government also

breached the plea agreement by violating its promise not to

suggest in any way that the district court impose a sentence

other than the stipulated one.

The panel explained that when a defendant timelyobjects,

moves for specific performance, and successfully appeals the

district court’s post-breach order rejecting a Rule 11(c)(1)(C)

plea agreement, the appropriate remedy is to vacate the

conviction and sentence and remand for further proceedings

before a different judge. Because the defendant appealed

only his sentence and did not seek vacatur of his conviction,

the panel vacated only his sentence and remanded for

resentencing before a different district judge.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MORALES HEREDIA 3

COUNSEL

Sean K. Kennedy, Federal Public Defender, Jonathan D.

Libby (argued), Deputy Federal Public Defender, Los

Angeles, California, for Defendant-Appellant.

André Birotte Jr., United States Attorney, Robert E. Dugdale,

Assistant United States Attorney, Chief, Criminal Division,

L. Ashley Aull (argued), Assistant United States Attorney,

Nathaniel B. Walker, Special Assistant United States

Attorney, Los Angeles, California, for Plaintiff-Appellee.

OPINION

WARDLAW, Circuit Judge:

Every day along the southwest border, previously

deported aliens lacking entry documents are arrested,

detained, and charged with illegal reentry. Once convicted,

they serve a term of imprisonment, and then are again

deported. The numbers are so great that federal prosecutors

in these border states began to resort to an efficient means of

securing a conviction: a “fast-track” plea agreement that

binds the government and the defendant, but not the district

judge.

The government secures the benefit of a streamlined

process that minimizes the burden on its prosecutorial

resources. It need not go before a grand jury to secure an

indictment; battle motions, including collateral attacks on the

underlying deportation; prosecute a jury trial; or oppose an

appeal. The defendant, in turn, waives constitutional and

other rights and agrees to a term of incarceration and, often,
4 UNITED STATES V. MORALES HEREDIA

a term of supervised release ordinarily discouraged by the

U.S. Sentencing Guidelines. What is the incentive for the

defendant to take this deal? The prosecutor binds 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 judge. If

the judge does not accept this sentence, the defendant may

walk away from his guilty plea, and proceedings will begin

anew.

Paul Gabriel Morales Heredia (Morales) was one such

defendant. But in Morales’s case, the orderly and efficient

plea-bargaining process did not play out as intended. The

government extended the promise of a reduced prison term

with one hand and took it away with the other. The

prosecutor’s recommendation of a six-month prison termrang

hollow as he repeatedly and unnecessarily emphasized

Morales’s criminal history, adding for good measure his

personal opinion that “defendant’s history communicates a

consistent disregard for both the criminal and immigration

laws of the United States.” Morales’s counsel timely

objected and sought specific performance of the plea

agreement. The district judge denied this relief on the

irrelevant ground that the prosecutor’s statements did not

influence him. We conclude that Morales is entitled to relief,

and we vacate his sentence and remand for further

proceedings before a different judge.

I.

The Immigration and Nationality Act of 1952 imposed

felony criminal liability for a previously deported alien who

subsequently entered, attempted to enter, or was found in the

United States. See Pub. L. 82-414, § 276, 66 Stat. 163, 229
UNITED STATES V. MORALES HEREDIA 5

(1952) (codified as amended at 8 U.S.C. § 1326). For several

decades thereafter, this provision—like the immigration laws

as a whole—was lightly enforced along the southwest border. 

Aliens were seldom charged with illegal reentry under

§ 1326. A few were charged with misdemeanor improper

entry, 8 U.S.C. § 1325, and most were simply deported

without criminal sanctions.

1

In 1992, out of more than

565,000 undocumented aliens apprehended in the Southern

District of California, only 245 were charged with a felony of

any kind, and many of those charges arose from conduct

other than the unlawful entry itself.2

In the mid-1990s, the federal government increased its

enforcement of the immigration laws in the southwest,

rapidly expanding the resources available to the Border

Patrol.3 Since then, the United States has prosecuted

increasing numbers of aliens for illegal reentry under § 1326

and improper entry under § 1325. In 1993, the Department of

Justice initiated fewer than 2,500 illegal reentry

prosecutions.4 By 2004, that number had grown to more than

1

See Alan D. Bersin, Reinventing Immigration Law Enforcement in the

Southern District of California, 8 FED. SENT’G REP. 254, 254–55 (1996).

2

See William Braniff, Local Discretion, Prosecutorial Choices and the

Sentencing Guidelines, 5 FED. SENT’G REP. 309, 309 (1993).

3

See generally U.S. GEN. ACCOUNTING OFFICE, GAO-01-842, INS’

SOUTHWESTBORDER STRATEGY:RESOURCE AND IMPACT ISSUES REMAIN

AFTER SEVEN YEARS (2001).

4

See At Nearly 100,000, Immigration Prosecutions Reach All-Time

High in FY 2013, TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE

(Nov. 25, 2013), http://trac.syr.edu/immigration/reports/336.
6 UNITED STATES V. MORALES HEREDIA

13,000.5In each of the past five years, the federal

government has initiated over 30,000 illegal reentry

prosecutions, including an all-time high of 37,440 last year.6

These prosecutions constitute a significant proportion of the

federal criminal docket. More than a third of all federal

defendants in the Ninth Circuit are charged with immigration

offenses.7

Fast-track plea programs are both a response to and a

cause of this rise in prosecutions. In 1993, the United States

Attorney’s Office for the Southern District of California

began to offer accelerated plea deals to defendants charged

with illegal reentry under 8 U.S.C. § 1326(b), who faced

increased sentencing exposure because their previous removal

had occurred subsequent to a felony conviction. See United

States v. Estrada-Plata, 57 F.3d 757, 759 (9th Cir. 1995). 

Defendants were required to waive indictment, plead guilty

at the initial appearance, waive appeal of their sentence, and

stipulate to a two-year sentence, below the applicable range

5

See Changes in Criminal Enforcement of Immigration Laws,

TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (May 13, 2014),

http://trac.syr.edu/immigration/reports/354.

6

Id. While the number of § 1326 charges has increased in rough parallel

with the number of § 1325 charges, the number of § 1326 convictions has

started to decline as defendants increasingly resolve their cases by

pleading to misdemeanors. See Despite Rise in Felony Charges, Most

Immigration Convictions Remain Misdemeanors, TRANSACTIONAL

RECORDS ACCESS CLEARINGHOUSE (June 26, 2014),

http://trac.syr.edu/immigration/reports/356. In the District of Arizona, in

particular, almost 90 percent of defendants initially charged under § 1326

are eventually convicted under § 1325. See id.

7

See UNITED STATES COURTS FOR THE NINTH CIRCUIT, 2012 ANNUAL

REPORT 65 (2012).
UNITED STATES V. MORALES HEREDIA 7

of the then-binding Guidelines. See id. In 1995, the same

United States Attorney’s Office began to offer fast-track pleas

to all illegal reentry defendants with substantial criminal

histories, requiring defendants to plead guilty under § 1326(a)

and to stipulate to the entry of an order of removal that would

result in their deportation immediately upon their release

from prison.8 Making widespread use of fast-track pleas, the

Southern District of California prosecuted more felony

immigration offenses in 1995 than it had in the previous ten

years combined.9In other border districts where the federal

government had committed additional resources to

enforcement, fast-track programs also emerged, and

prosecutions rapidly increased.10

In 2003, Congress endorsed fast-track pleas by directing

the United States Sentencing Commission to promulgate a

policy statement authorizing reduced sentences for

participants in fast-track programs. See Prosecutorial

Remedies and Other Tools to End the Exploitation of

Children Today (PROTECT) Act of 2003, Pub. L. No. 108-

21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). The

Sentencing Guidelines now permit the district court to adjust

the offense level of a defendant who participates in a fasttrack program not more than four levels downward. See

U.S.S.G. § 5K3.1. The courts of appeals eventually split over

whether a district court could impose a below-Guidelines

sentence for a defendant in a district without a fast-track

 

8

See Bersin, supra note 1, at 256.

 

9

See id.

10 See id. at 258 n.1; see also Thomas E. Gorman, A History of FastTrack Sentencing, 21 FED. SENT’G REP. 311, 311 (2009).
8 UNITED STATES V. MORALES HEREDIA

program on the basis of an unwarranted sentencing disparity

with a fast-track defendant who had committed the same

offense. Compare, e.g., United States v. Gonzalez-Zotelo,

556 F.3d 736, 739–40 (9th Cir. 2009), with United States v.

Rodriguez, 527 F.3d 221, 227–29 (1st Cir. 2008). The

Department of Justice responded in 2012 by establishing

uniform eligibility requirements for fast-track pleas for all

defendants across the country. See Memorandum for All

United States Attorneys from James M. Cole, Deputy

Attorney General, at 2 (Jan. 31, 2012) [hereinafter “Cole

Memorandum”], available at http://www.justice.gov/dag/fasttrack-program.pdf.

While the details may vary from district to district, all

fast-track programs “are based on the premise that a

defendant who promptly agrees to participate in such a

program saves the government significant and scarce

resources that can be used to prosecute other defendants, and

. . . has demonstrated an acceptance of responsibility above

and beyond what is already taken into account by the

adjustments contained in the Sentencing Guidelines.” Id. at

1. According to the Department of Justice, fast-track plea

agreements have become an important nationwide tool to

address the “compelling, and otherwise potentially

intractable, resource issue” posed by the number of

immigration crimes on the federal criminal docket.11Id.

11 The government has also responded to these resource challenges by

appointing Special Assistant United States Attorneys to handle criminal

prosecutions. These attorneys may be on loan from other government

agencies, or may be unpaid volunteers. See Joe Davidson, ‘Special’

Assistant United States Attorneys Work for Free, WASH. POST, July 18,

2013.
UNITED STATES V. MORALES HEREDIA 9

Because the object of a fast-track plea is to achieve

greater than normal efficiency through a lighter than normal

sentence, the parties in a fast-track case typically encourage

the district court to impose the negotiated sentence. Federal

Rule of Criminal Procedure 11 provides them with the means

to do so. Rule 11 governs the process for entering pleas and

sets forth requirements for the district court’s acceptance of

a guilty plea. See Fed. R. Crim. P. 11(a), (b). It also

recognizes three distinct types of plea agreements. See Fed.

R. Crim. P. 11(c)(1). The government may agree to dismiss

or not to bring further charges; to make a sentencing

recommendation that does not bind the district court; or to

make a sentencing recommendation that binds the district

court if the court accepts the agreement. Id.

Specifically, Rule 11(c)(1)(C) authorizes the government

to “agree that a specific sentence or sentencing range is the

appropriate disposition of the case, or that a particular

provision of the Sentencing Guidelines . . . or sentencing

factor does or does not apply.” The agreement “is contingent

until the court accepts” it. Freeman v. United States, 131 S.

Ct. 2685, 2692 (2011) (plurality opinion). When presented

with a Rule 11(c)(1)(C) agreement, the district court may

accept the agreement, reject the agreement, or wait to

consider the agreement until it has reviewed the presentence

report. See Fed. R. Crim. P. 11(c)(3). If the district court

ultimately accepts the agreement, it must impose the

recommended sentence. See Fed. R. Crim. P. 11(c)(4). If it

ultimately rejects the agreement, it must give the defendant
10 UNITED STATES V. MORALES HEREDIA

the opportunity to withdraw his plea. See Fed. R. Crim. P.

11(c)(5).12

While Rule 11(c)(1)(C) may apply to any offense, it plays

a particularly important role in fast-track illegal reentry cases. 

The Department of Justice requires that United States

Attorneys retain the discretion to compel defendants who

wish to participate in fast-track programs to enter into Rule

11(c)(1)(C) agreements. See Cole Memorandum at 4. In

some judicial districts, fast-track defendants are in fact

required to enter into Rule 11(c)(1)(C) agreements.13

In

2006, the Central District of California began to offer a Rule

11(c)(1)(C) agreement as its standard fast-track plea offer to

12 Sentence bargains are a longstanding, though controversial, practice. 

See Joshua D. Asher, Note, Unbinding the Bound: Reframing the

Availability of Sentence Modifications for Offenders Who Entered Into

11(c)(1)(C) Plea Agreements, 111 COLUM. L. REV. 1004, 1005–06,

1021–23 & n.90 (2011). One district judge has described Rule

11(c)(1)(C) pleas as “the best tool between the extremes of no prosecution

at all and an effort to obtain the most severe sentence available under the

law and the Guidelines.” John Gleeson, The Sentencing Commission and

Prosecutorial Discretion: The Role of the Courts in Policing Sentence

Bargains, 36 HOFSTRA L. REV. 639, 641 (2008). But Rule 11(c)(1)(C),

like other procedural provisions that allocate power to prosecutors to

determine sentences, also raises the concern that “the prosecutor becomes

the adjudicator—making the relevant factual findings, applying the law to

the facts, and selecting the sentence or at least the sentencing range.” 

Rachel E. Barkow, Institutional Design and the Policing of Prosecutors:

Lessons from Administrative Law, 61 STAN. L. REV. 869, 878 (2009).

13 See Fast-Track Policies for Illegal Reentry Cases by District

and Circuit, DEFENDER SERVICES OFFICE (Dec. 2013),

http://www.fd.org/docs/select-topics/sentencing-resources/fast-trackpolicies-for-illegal-reentry-cases-by-district-and-circuit-%28december2013%29.pdf?sfvrsn=4.
UNITED STATES V. MORALES HEREDIA 11

most defendants charged with illegal reentry.

14

 As far as we

are aware, this policy remains in effect. In the Central

District and throughout the Ninth Circuit, Rule 11(c)(1)(C)

agreements are a common way of resolving illegal reentry

prosecutions. See, e.g., United States v. Gonzalez, 502 F.

App’x 665 (9th Cir. 2012); United States 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.

Within this larger context, enter (or, reenter) Morales. 

Like so many others, Morales, a native and citizen of Mexico,

has repeatedly crossed the southwest border into the United

States without authorization. After being removed from the

United States in 1992, 2009, and 2010, he again entered

without inspection in 2011. Immigration authorities

apprehended him. The government charged Morales in an

information with illegal reentry, in violation of 8 U.S.C.

§ 1326. The government also provided notice that one of

Morales’s prior removals had occurred subsequent to an

aggravated felony conviction, therebyincreasing the statutory

maximum penalty from two years’ imprisonment to twenty

years’ imprisonment. See 8 U.S.C. § 1326(b)(2).

In January 2012, Morales and the government executed a

written fast-track plea agreement under Rule 11(c)(1)(C). 

Morales agreed to plead guilty to the sole count of illegal

reentry in the information at the earliest opportunity provided

14 See Memorandum Reporting Revisions to Illegal Reentry Fast-Track

Program in Central District of California, 21 FED. SENT’G REP. 349, 350

(2009).
12 UNITED STATES V. MORALES HEREDIA

by the government. He agreed to waive his constitutional

rights to be indicted by a grand jury, to contest his guilt at

trial, to confront adverse witnesses, to testify on his own

behalf, and to avoid self-incrimination. Morales also

promised not to pursue any affirmative defenses, to seek the

suppression of evidence under the Fourth or Fifth

Amendments, or to pursue any other pretrial motions. 

Finally, he agreed to waive his right to appeal his conviction. 

Morales acknowledged that his conviction might subject him

to deportation.

In return, the United States promised to recommend a

particular sentence that would bind the district court unless it

rejected the agreement. The parties agreed on the applicable

provisions of the United States Sentencing Guidelines. They

also agreed that Morales’s total offense level under the

Guidelines was nine. This included the four-level reduction

advised by the Guidelines for participation in a fast-track

program. See U.S.S.G. § 5K3.1. The parties agreed that the

probation office could prepare a presentence report (PSR) that

addressed onlyMorales’s criminal history, and that no further

factual development of the record was required. The parties

acknowledged that the district court would calculate

Morales’s criminal history category. The intersection of the

criminal history category with Morales’s stipulated total

offense level would determine his sentencing range under the

Guidelines. See U.S.S.G. ch. 5, pt. A.

Morales and the United States agreed that the appropriate

disposition of the case was a prison term equal to the low end

of the applicable Guidelines range, plus the statutory

maximum of three years of supervised release, see 18 U.S.C.

§ 3583(b)(2). They did so despite the provision of the

Sentencing Guidelines advising against supervised release in
UNITED STATES V. MORALES HEREDIA 13

cases involving aliens who, like Morales, would likely be

deported after incarceration. See U.S.S.G. § 5D1.1(c).

Morales acknowledged that the conditions of his supervised

release would include compliance with the immigration laws

of the United States.

Both parties agreed to recommend that the district court

impose the stipulated sentence. They also agreed that they

would not “seek, argue, or suggest in any way, either orally

or in writing, that any other specific offense characteristics,

adjustments, departures, or variances in sentence . . . be

imposed, or that the Court impose a sentence other than what

has been stipulated to by the parties herein.” Both reserved

the right to “supplement the facts” by supplying the court

with relevant information, as well as the right to “correct any

and all factual misstatements” relating to the district court’s

Guidelines calculations. If the district court imposed the

stipulated sentence, both parties waived the right to appeal

any part of the sentence except the court’s calculation of

Morales’s criminal history category.

The district court provisionally accepted Morales’s plea

of guilty, while cautioning Morales that it reserved the right

to reject the Rule 11(c)(1)(C) plea agreement and that, if it

did so, Morales would have an opportunity to withdraw his

plea. Several weeks later, Morales’s probation officer

disclosed his presentence report to the parties and the district

court. The PSR detailed Morales’s criminal history, which

included felony convictions for burglary, receiving stolen

property, and the sale of heroin, as well as a misdemeanor

domestic violence conviction. The probation officer

determined that Morales had three criminal history points,

resulting in a criminal history category of II and, with the

fast-track downward adjustment in offense level, an
14 UNITED STATES V. MORALES HEREDIA

applicable Guidelines range of six to twelve months in prison. 

The probation officer recommended that the district court

impose the stipulated low-end sentence of six months’

imprisonment plus three years of supervised release.

The government then filed its sentencing position in the

district court. The government recommended a low-end

sentence of six months’ imprisonment and a three-year period

of supervised release, as it had agreed to do. It then went on

to detail “[d]efendant’s 20-year criminal history” already

identified in the PSR. Discussing Morales’s 1993 conviction

for possession of heroin for sale, the government noted that

Morales had been “arrested with 56 balloons filled with over

9 grams of heroin.” Addressing Morales’s 1995 domestic

violence conviction, the government explained that Morales

“allegedly choked the mother of his then-infant daughter,

grabbed her face, shook her vigorously, shoved her against a

wall, and cut her lip.” Morales’s criminal history, the

government argued, “communicates a consistent disregard for

both the criminal and immigration laws of the United States.”

Furthermore, though it argued that a six-month sentence

was reasonable, the government also noted that “defendant’s

demonstrated propensity for drug trafficking and theft-related

offenses is also concerning, and an appropriate sentence is

warranted to ensure sufficient deterrence to future criminal

conduct.” And, to support the recommended term of

supervised release, the government stated that Morales “poses

a danger to the community because his criminal history

includes both drug trafficking and battery.”

Defense counsel promptly emailed the prosecutor to

express his view that the government had breached the plea

agreement by failing to recommend, in substance, a sentence
UNITED STATES V. MORALES HEREDIA 15

at the low end of the Guidelines range. Counsel urged the

government to withdraw its sentencing position and file a

new one. The prosecutor denied breaching the agreement. 

Shortly thereafter, the government filed a supplemental

sentencing position without withdrawing the original. In its

supplemental memorandum, the government corrected two

technical errors and reiterated its support for a “low-end 6-

month prison term” and a three-year period of supervised

release. The government stated that it had “consistently

advocated” for this sentence and that its prior memorandum

had “analyze[d] defendant’s criminal history because

criminal history is a major component of any thorough

[sentencing] analysis.”

A few weeks later, the district court informed the parties

that it would not accept the terms of the Rule 11(c)(1)(C)

agreement and that Morales therefore had the right to

withdraw his guilty plea. Defense counsel immediately

moved for specific performance of the plea agreement,

arguing that the government’s initial sentencing

memorandum had breached it. At a hearing on the motion,

the district court expressed its view that Rule “11(c)(1)(C) is

a different kind of plea agreement,” and that it retained

discretion to reject the agreement irrespective of the

government’s statements. Defense counsel argued that “the

breach[] jurisprudence is no less applicable in the 11(c)(1)(C)

context than it is in any other plea agreement context.”

The district court denied Morales’s motion for specific

performance of the plea agreement in a written order. It

explained: “The Government’s brief description of

Defendant’s criminal historyand prior immigration violations

had no effect on this Court’s rejection of the Rule 11(c)(1)(C)

plea.” Rather, it had determined that the stipulated sentence
16 UNITED STATES V. MORALES HEREDIA

was inadequate “on the basis of its independent review” of

the PSR. The district court noted that “all of the cases cited

by Defendant . . . did not involve[] a Rule 11(c)(1)(C) plea.”15

Four days later, at the sentencing hearing, Morales

declined to withdraw his guilty plea when given the

opportunity to do so. The district court sentenced him to

twenty-one months of incarceration—three-and-a-half times

longer than the stipulated prison term—and three years of

supervised release. The twenty-one month prison term was

equal to the high end of the Guidelines range that would have

applied without the four-level downward adjustment for a

fast-track plea. Morales timely appealed.

III.

We have jurisdiction to review Morales’s sentence

pursuant to 18 U.S.C. § 3742(a). Because Morales’s counsel

objected to the government’s statements before the district

court, we review de novo whether the government breached

the plea agreement. United States v. Whitney, 673 F.3d 965,

970 (9th Cir. 2012).

IV.

A.

“[C]riminal justice today is for the most part a system of

pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct.

1376, 1388 (2012). In the vast majority of criminal cases, a

15 We cannot discern from the record whether the district court found

that there was no breach or that any breach was harmless. The difference

is immaterial to our analysis, as either conclusion was error.
UNITED STATES V. MORALES HEREDIA 17

prosecutor’s promise of less harsh treatment induces the

defendant to waive his constitutional rights and admit guilt. 

Plea bargaining is desirable because it conserves resources,

encourages prompt and final resolution of criminal cases,

helps avoid the “corrosive impact” of prolonged pretrial

detention, and abates the risk to public safety caused by

lengthy pretrial release. Santobello v. New York, 404 U.S.

257, 260–61 (1971). “However, all of these considerations

presuppose fairness” in the plea bargaining process. Id. at

261. Accordingly, when the prosecutor makes a promise to

the defendant, that “promise must be fulfilled.” Id. at 262. 

The integrity of the criminal justice system depends upon the

government’s strict compliance with the terms of the plea

agreements into which it freely enters. See Whitney, 673 F.3d

at 974.

Plea agreements are “essentially contracts.” Puckett v.

United States, 556 U.S. 129, 137 (2009). We enforce their

literal terms, construing any ambiguities in the defendant’s

favor. See United States v. Franco-Lopez, 312 F.3d 984, 989

(9th Cir. 2002). In interpreting the agreement and crafting an

appropriate remedy for any breach, our task is to “secure the

benefits promised [the defendant] by the government in

exchange for surrendering his right to trial.” Id.

The government breaches its agreement with the

defendant if it promises to recommend a particular

disposition of the case, and then either fails to recommend

that disposition or recommends a different one. See, e.g.,

United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.

1999). See generally 5WAYNER.LAFAVEET AL.,CRIMINAL

PROCEDURE § 21.2(d) (3d ed. 2013). When it offers to

recommend a specific sentence, the government induces the

defendant to forfeit his constitutional rights in exchange for
18 UNITED STATES V. MORALES HEREDIA

a “united front.” United States v. Camarillo-Tello, 236 F.3d

1024, 1028 (9th Cir. 2001). “[W]hen the sentencing court

hears that both sides believe a certain sentence is appropriate

and reasonable in the circumstances, this is more persuasive

than only the defendant arguing for that sentence. . . . [T]his

‘united front’ is the defendant’s benefit of the bargain.” Id.

The government’s promise to recommend a particular

disposition can be broken either explicitly or implicitly. See

Whitney, 673 F.3d at 971. The government is under no

obligation to make an agreed-upon recommendation

“enthusiastically.” Johnson, 187 F.3d at 1135. However, it

may not superficially abide by its promise to recommend a

particular sentence while also making statements that serve

no practical purpose but to advocate for a harsher one. See

Whitney, 673 F.3d at 971; United States v. Mondragon,

228 F.3d 978, 981 (9th Cir. 2000); Johnson, 187 F.3d at 1135. 

That is, the government breaches its bargain with the

defendant if it purports to make the promised

recommendation while “‘winking’ at the district court” to

impliedly request a different outcome. United States v. Has

No Horses, 261 F.3d 744, 750 (8th Cir. 2001). An implicit

breach of the plea agreement occurs if, for example, the

government agrees to recommend a sentence at the low end

of the applicable Guidelines range, but then makes

inflammatory comments about the defendant’s past offenses

that do not “provide the district judge with any new

information or correct factual inaccuracies.” Whitney,

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

B.

As the district court observed, we have not previously

applied the principles governing the breach of plea
UNITED STATES V. MORALES HEREDIA 19

agreements to Rule 11(c)(1)(C) agreements.

16 The only

logical conclusion, however, is that those principles apply

with equal force in this context. Our decisions in Mondragon

and Whitney confirm that the government breached its

agreement with Morales by denying him the united front for

which he bargained. The government’s statements in this

case did at least as much to recommend a harsher than

agreed-upon sentence as the statements that breached the plea

agreements in Mondragon and Whitney.

In Mondragon, the government promised the defendant

that it would “make no recommendation regarding [the]

sentence.” 228 F.3d at 979. After defense counsel

characterized the defendant’s previous crimes as “petty,” the

district court asked the government whether it had any

comment. Id. The government pointed out in response that

the defendant had frequently run from law enforcement,

resisted arrest, and skipped court dates. See id. We rejected

the government’s argument that its comments served the

legitimate purpose of responding to the court’s question or

correcting factual misstatements by opposing counsel. See id.

at 980. Because the “prosecutor’s comments did not provide

the district judge with any new information or correct any

factual inaccuracies,” but simply repeated information

already contained in the PSR, we concluded that “the

comments could have been made for only one purpose: to

16

In United States v. Gonzalez-Aguilar, 718 F.3d 1185 (9th Cir. 2013),

we reviewed a similar alleged breach of a Rule 11(c)(1)(C) agreement for

plain error. We declined to decide whether the government had breached

the agreement by including aggravating facts in its sentencing

memorandum because we held that the defendant could not show any

breach affected his substantial rights. Id. at 1187. Here, because defense

counsel timely objected below, we address the questions left open in

Gonzalez-Aguilar.
20 UNITED STATES V. MORALES HEREDIA

influence the district court to impose a harsher sentence.” Id. 

By implicitly making a sentencing recommendation, the

government breached the plea agreement. Id.

In Whitney, the government promised the defendant it

would recommend a sentence at the low end of the applicable

Guidelines range. See Whitney, 673 F.3d at 968. After

defense counsel stated that the defendant was merely a

nonviolent thief, and “not a good thief,” the government

responded to “rebut[]” the claim, arguing that the defendant

was in fact a “good thief.” Id. at 969–70. As in Mondragon,

the prosecutor’s comments provided no new factual

information to the district court. See id. at 971. We rejected

as “disingenuous” the government’s argument that it was

compelled to provide an argument to “justify even its low-end

guideline sentence recommendation.” Id. at 971–72. The

district court had given no indication that it was considering

imposing a sentence lower than the government’s

recommendation; the defendant could not have requested a

below-Guidelines sentence under the terms of the plea

agreement; and the probation office recommended a sentence

more than double the low end of the Guidelines range. See

id. at 972. We therefore concluded that the prosecutor’s

critical comments “could only have been intended” to

persuade the district court to impose a higher sentence than

the government had promised to recommend, “and not to

guard against an unsolicited downward departure.”17

Id.

17 We are not persuaded by the government’s attempt to distinguish

Whitney on the basis that the prosecutor there also separately breached the

plea agreement by divulging confidential information. Whitney analyzed

the two separate breaches of the plea agreement independently of each

other. See Whitney, 673 F.3d at 970–71.
UNITED STATES V. MORALES HEREDIA 21

Here, the parties agreed to recommend that Morales

receive a prison term equal to the low end of the applicable

Guidelines range plus a three-year term of supervised release. 

The government breached its agreement, however, through its

repeated and inflammatory references to Morales’s criminal

history in its sentencing memorandum. Like Mondragon and

Whitney, all of the aggravating factual information in this

memorandum had already been provided to the district court

in the PSR. Moreover, there was no reason to believe that the

district court was considering imposing a sentence less harsh

than the stipulated one. Nor were the government’s

statements made off the cuff or in response to commentary or

argument by the defense. Rather, given the opportunity to

argue for the low-end sentence it had promised to

recommend, the government offered a series of prejudicial

“statements related to the seriousness of the defendant’s prior

record.” Whitney, 673 F.3d at 971. The central theme of the

government’s sentencing position was that Morales was a

dangerous recidivist who had spent twenty years flouting the

law and menacing others. Whether intentional or not, the

government breached the plea agreement by implicitly

recommending a higher sentence than agreed upon.

We recognize that this case differs from Whitney in a

significant respect: Here, the government bound itself to

recommend not only a low-end Guidelines sentence, but also

a statutory maximum three-year term of supervised release. 

This supervised release term is contrary to the Guidelines,

which provide that “[t]he court ordinarily should not impose

a term of supervised release” when a defendant, like Morales,

is “likely [to] be deported after imprisonment.” U.S.S.G.

§ 5D1.1(c) (emphasis added). The government contends that

the inflammatory material was properly included in the
22 UNITED STATES V. MORALES HEREDIA

sentencing memorandum to support the recommended threeyear term of supervised release. We disagree.

As an initial matter, this does not appear to have been the

government’s actual motivation for the offending statements,

almost none of which appear in the portion of the sentencing

memorandum that discussessupervised release. Furthermore,

while the government could permissibly make some factual

reference to Morales’s criminal history to justify the

stipulated term of supervised release, the government offers

no justification for the depth and tone of its discussion. That

Morales possessed 56 balloons of heroin when arrested for

selling drugs, and that his misdemeanor domestic violence

conviction was for choking and shoving the mother of his

infant daughter, are prejudicial details likelier to inflame than

to provide information relevant to the imposition of

supervised release. See U.S.S.G. § 5D1.3(b). And the

prosecutor’s references to Morales’s “propensity for drug

trafficking” and “consistent disregard for both the criminal

and immigration laws of the United States” are merely

pejorative editorializing.

18

18 The government could, for example, have said the criminal history

was found in the PSR and incorporated it in its sentencing memorandum

by reference. The discussion of Morales’s criminal history in the PSR

included no editorializing or inflammatory language. Indeed, the

probation office adopted this approach in justifying its sentencing

recommendation to the district court:

In regard to Morales’ criminal history, he has felony

convictions for drug sales, receiving stolen property,

and commercial burglary. He also has a misdemeanor

conviction for spousal abuse. The longest sentence he

received in the past was a year in county jail. . . .
UNITED STATES V. MORALES HEREDIA 23

Most important, the particular context of this fast-track

plea agreement negates the government’s purported

justification for its statements. Morales was induced to enter

into a fast-track plea by the offer of a binding sentencing

recommendation resulting in a lower prison term than he

would receive if he pleaded guilty later. To his detriment,

Morales stipulated to the three-year term of supervised

release even though he knew he would be deported following

his release.19 As the parties acknowledged in briefing and at

oral argument, a three-year term of supervised release is

After considering the nature and circumstances of

Morales’ offense as well as his history and

characteristics, a six month sentence followed by three

years supervised release is recommended as sufficient

but not greater than necessary. A sentence of this

length is the same length as the actual time served for

the one year county jail sentence that Morales served in

the past and it is hoped it will have an adequate

deterrent effect and also promote respect for the

law. . . .

The advisory guidelines discourage a term of

supervised release when not required by statute and

when the defendant is a deportable alien. However, a

three year term is recommended as agreed to by the

parties and as a term of this length will protect the

public in light of Morales’ prior convictions for drug

sales.

19 A mandatory condition of supervised release is that the defendant not

commit any federal, state, or local crime. See 18 U.S.C. § 3583(d). 

Morales’s supervised release also included the routine condition that he

comply with all immigration rules and regulations and not reenter the

United States illegally. Morales thereby agreed to additional punishment

should he again be caught unlawfully returning to the United States. He

could be incarcerated for violating the terms of his supervised release, as

well as subject to another § 1326 prosecution.
24 UNITED STATES V. MORALES HEREDIA

apparently a common provision of fast-track pleas in illegal

reentry cases in the Central District of California.

20 The

government had no reason to call special attention to the

ugliest aspects of Morales’s past to justify what is, in these

circumstances, a routine recommendation.

Indeed, given the government’s promise of leniency, it is

notable that its sentencing memorandum contained no

mitigating information at all. Rather, it emphasized that

Morales, a “danger to the community,” needed to be

“deterre[d]” because of his “20-year criminal history,” his

“consistent disregard” for the law, and his criminal

“propensity.” The reader is left to wonder why the

government believed a low-end Guidelines sentence was

appropriate in the first place. Accordingly, we conclude that,

as a whole and in context, the government’s pejorative

comments about Morales’s criminal history and detailed

descriptions of his prior offenses served “no purpose” but to

argue for a harsher punishment than it had agreed to

recommend. Whitney, 673 F.3d at 971. By implicitly

advocating for a sentence other than the stipulated one, the

government breached the plea agreement.

The government also breached its agreement with

Morales in a second, independent way. The government did

not only agree to recommend a particular sentence, as in

Whitney, or to avoid recommending a sentence, as in

20 A review of our cases confirms that a three-year term of supervised

release is not uncommon in illegal reentry prosecutions in the Central

District ofCalifornia. See, e.g., United States v. Gutierrez, No. 13-50008;

United States v. Cardenas, 13-50045; United States v. Canas, 540 F.

App’x 789 (9th Cir. 2013); United States v. Meza, 319 F. App’x 695 (9th

Cir. 2009); United States v. Ceja-Licea, 264 F. App’x 594 (9thCir. 2008).
UNITED STATES V. MORALES HEREDIA 25

Mondragon. It also expressly promised in the plea agreement

not to “seek, argue, or suggest in any way” that the district

court impose a “sentence other than what has been stipulated

to by the parties herein.” We enforce the literal terms of this

promise and require the government’s strict compliance with

it. See Whitney, 673 F.3d at 974; Franco-Lopez, 312 F.3d at

989.

Even if the inflammatory language in the government’s

sentencing position had partially served a legitimate purpose,

which it did not, it surely also “suggest[ed]” that the district

court impose a harsher sentence. The government freely

undertook a broad commitment to Morales to avoid even the

implication that a sentence other than the stipulated one might

be appropriate. See WEBSTER’STHIRDNEWINTERNATIONAL

DICTIONARY 2286 (2002) (defining “suggest” as “to mention

. . . as a possibility,” “put forward by implication,” or

“propose . . . as desirable or fitting”). At a minimum, by

characterizing Morales as a dangerous criminal, the

sentencing memorandum suggested in some way that a

sentence other than six months in prison could be advisable. 

Under this provision of the contract between Morales and the

government, it is irrelevant whether these statements also

served another purpose. Therefore, even if we did not

conclude that the offending language had “no practical

purpose” but to argue implicitly for a harsher than stipulated

punishment, we would still conclude that the government

breached the express terms of this plea agreement.

C.

The government’s breach of the plea agreement was

neither cured nor curable before the district court.
26 UNITED STATES V. MORALES HEREDIA

The government filed a supplemental sentencing position

in the district court in response to defense counsel’s

objection. This supplemental filing did not acknowledge, let

alone rectify, the government’s previous errors. It merely

corrected two clerical mistakes and argued that the

government’s initial sentencing memorandum had properly

“analyze[d]” Morales’s criminal history to support the

recommended three-year term of supervised release. The

government’s denial that it had breached the agreement did

not restore the united front for which Morales had bargained.

Moreover, even if the government had acknowledged its

error in its supplemental memorandum, doing so would not

have cured the breach. Only “some breaches may be curable

upon timely objection” to the district court. Puckett, 556 U.S.

at 140 (emphasis in original). For example, if the prosecution

makes a “mere slip of the tongue or typographical 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 agreement,” Puckett, 556 U.S. at 140, the

prosecution may cure the inadvertent mistake by promptly

discharging its obligations. But a breach like the one that

occurred here cannot be undone. Once the prosecution has

forcefully argued for a sentence other than the stipulated one

and has denied the defendant a united front, “one really

cannot calculate how the government’s error and breach may

have affected the perceptions of the sentencing judge.” 

Alcala-Sanchez, 666 F.3d at 577. That the district court

claimed not to have been influenced by the government’s

sentencing memorandum is simply “irrelevant.” CamarilloTello, 236 F.3d at 1028; accord Santobello, 404 U.S. at 262;

Gunn v. Ignacio, 263 F.3d 965, 969–70 (9th Cir. 2001).
UNITED STATES V. MORALES HEREDIA 27

Nor does Morales’s decision not to withdraw his plea

before his sentence was imposed cure the government’s

breach.21 Morales bargained for the opportunity to withdraw

his plea if the district court rejected the plea agreement

despite the government’s support. To conclude that

Morales’s choice not to withdraw his plea somehow negates

the breach would force Morales to bear the burden of the

government’s error. Indeed, it would effectively license the

government to violate Rule 11(c)(1)(C) agreements with

impunity, as the defendant would be compelled either to

accept the result of the proceedings infected by the breach or

to risk proceeding to trial or attempting to negotiate a new

agreement with no leverage. We decline to “lessen the

government’s duty of strict compliance” in this manner. 

Alcala-Sanchez, 666 F.3d at 577.

V.

We do not review the breach of a plea agreement for

harmless error on appeal. See, e.g., Mondragon, 228 F.3d at

981. Rather, “automatic reversal is warranted when objection

to the Government’s breach of a plea agreement has been

preserved.” Puckett, 556 U.S. at 141 (citing Santobello,

404 U.S. at 261–62). Furthermore, “case law requires” that

any further proceedings occur before a different judge, even

if we have no doubt that the first district judge treated the

defendant fairly and impartially. Alcala-Sanchez, 666 F.3d

at 577 n.2 (quoting United States v. Johnson, 187 F.3d 1129,

1136 n.7 (9th Cir. 1999)); accord Whitney, 673 F.3d at 968

21 Once the district court rejected the plea agreement, as distinct from the

plea itself, Morales’s guilty plea became a “naked” plea, unaccompanied

by any waiver of appellate review. See In re Vasquez-Ramirez, 443 F.3d

692, 697 (9th Cir. 2006).
28 UNITED STATES V. MORALES HEREDIA

n.1. Once the district judge has seen or heard the offending

words that denied the defendant the benefit of his bargain,

any further proceedings before him would necessarily be

tainted by the government’s breach. The only way to undo

the damage is to reassign the case.

When the district court rejects a Rule 11(c)(1)(C) plea

agreement after overruling the defendant’s objection to an

alleged breach, the defendant may appeal the district court’s

order rejecting the plea agreement after the district court has

entered judgment and imposed a sentence. See United States

v. Samueli, 582 F.3d 988, 993–94 (9th Cir. 2009); In re

Morgan, 506 F.3d 705, 708–12 (9th Cir. 2007). When the

district court finds that the government breached a Rule

11(c)(1)(C) agreement and the defendant timely moves for

specific performance, the district court must grant the motion,

order the government to fulfill its obligations under the

agreement, and immediately transfer the case to a different

district judge to ensure that the decision to accept or reject the

agreement will be untainted by the breach.22See Puckett, 556

U.S. at 140. If the district court fails to grant the defendant’s

motion for specific performance and instead rejects the Rule

11(c)(1)(C) agreement, it commits an error of law and thereby

abuses its discretion. See Perry v. Brown, 667 F.3d 1078,

1084 (9th Cir. 2012) (“[A]n error of law constitutes an abuse

of discretion.”).

22 Morales’s counsel did not seek the correct remedy before the district

court, but instead suggested that the district court was required to impose

a six-month sentence. The government’s breach does not strip the district

court of its discretion to accept or reject the plea agreement; it merely

requires prompt reassignment so the court’s discretion may be exercised

independently of the government’s breach.
UNITED STATES V. MORALES HEREDIA 29

Vacatur of the defendant’s sentence alone is an

inadequate remedy for the district court’s erroneous rejection

of a Rule 11(c)(1)(C) agreement after the government

breaches the plea agreement. By entering into a Rule

11(c)(1)(C) agreement, the defendant bargains for a binding

sentencing stipulation and for the opportunity to withdraw his

guilty plea if the district court rejects the stipulation after the

government has advocated for it. If we were to vacate only

the defendant’s sentence and the government were to perform

its obligations under the plea agreement before a different

judge on remand, the district court would still retain the

discretion not to accept the stipulated sentence. The

defendant would be unable to withdraw his plea, however,

because he is already subject to a judgment of conviction. A

remand for resentencing only would therefore fail to “secure

the benefits promised” the defendant, leaving him in a worse

position than if the government had not committed the

breach. Franco-Lopez, 312 F.3d at 989.

Accordingly, when a defendant timely objects, moves for

specific performance, and successfully appeals the district

court’s post-breach order rejecting a Rule 11(c)(1)(C) plea

agreement, the appropriate remedy is to vacate the conviction

and sentence and remand for further proceedings before a

different judge.

23 The defendant must have the opportunity

23 We have suggested that, when the district court erroneously rejects a

Rule 11(c)(1)(C) agreement for reasons unrelated to any breach, “any

legally cognizable harm can be remedied on direct or collateral review of

whatever sentence the district court ultimately imposes.” In re Morgan,

506 F.3d 705, 713 (9th Cir. 2007) (emphasis added). Review of the

sentence alone may provide a sufficient remedy under those circumstances

because the defendant has not been denied the benefit of his bargain with

the government, which does not and cannot promise that the district court

will not err.
30 UNITED STATES V. MORALES HEREDIA

to withdraw his plea after the district court exercises its

discretion to accept or reject the agreement in a manner

unaffected by the government’s breach.

In this case, however, Morales appealed only his sentence

and did not seek vacatur of his conviction. We therefore

vacate only his sentence and remand for resentencing before

a different district judge.

VI.

The Department of Justice has prosecuted an increasing

number of federal immigration crimes in recent decades. To

alleviate the resulting strain on the criminal justice system, it

recommends substantial sentencing discounts for defendants

who quickly plead guilty and waive important constitutional

and procedural rights. Fast-track agreements, including those

pursuant to Rule 11(c)(1)(C), serve the interests of all

involved. The government is obligated to adhere strictly to

their terms, just as it must—and usually does—honor its

promises under all plea agreements.

The purpose of a fast-track plea is to achieve unusual

efficiency through unusual leniency. Absent exceptional

circumstances, therefore, the government should have little

need to colorfully recount the details of the defendant’s

criminal history in its sentencing position in a fast-track case. 

In this case, the government’s inflammatory discussion of

Morales’s previous crimes served no practical purpose but to

argue implicitly for a harsher punishment than the

government had agreed to recommend. It also violated the

government’s express promise not to suggest in any way that

the district court impose a sentence other than the stipulated

one.
UNITED STATES V. MORALES HEREDIA 31

Morales would ordinarily be entitled to vacatur of his

conviction and sentence and a remand for further proceedings

before a different district judge. But here, in light of the only

remedy Morales requested, we vacate his sentence. On

remand, the Clerk of the United States District Court for the

Central District of California shall reassign the case to a

different district judge.

VACATED AND REMANDED with instructions.