* Circuit Judge of the Eighth Circuit, sitting by designation. REVISED - March 22, 2000

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40411

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT DANIEL SALING, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas, Sherman

February 29, 2000

Before POLITZ, GIBSON, * and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Robert Daniel Saling, Jr. appeals his conviction and sentence on the grounds

that the United States breached their plea agree ment. Concluding that the

government violated the express terms of its agreement with the defe ndant, we

vacate the conviction and sentence and remand to the district court so that Saling

may withdraw his guilty plea and further proceedings may be had.

BACKGROUND

Pursuant to a written plea agreement, Saling pleaded guilty to knowingly

possessing a firearm while a convicted felon in violation of 18 U.S.C. § 922(g).1 U.S.S.G. § 5G1.3(c) (1998).

2

Taking into account all relevant factors, including Saling’s prior violent felony

convictions, the Presentence Report computed the sentencing range for the instant

offense to be between 168-210 months. Under 18 U.S.C. § 924(e)(1), however, due

to Saling’s prior felonies, the minimum term of imprisonment for the instant crime

was 180 months, thereby altering the guideline range to 180-210 months. At the

time of sentencing, Saling was serving an undischarged term of imprisonment in

the Texas prison system for three state offenses. Under the Sentencing Guidelines

the instant sentence could be ordered to run concurrently, p artially concurrently,

or consecutively to his state sentences. 1 The PSI recommended and the district

court imposed a sentence of 195 months imprisonment, to run consecutive to his

state sentences, plus five years supervised release. Saling was ordered to pay a fine

and the statutory assessment.

The plea agreement expre ssly provided that the government would not

oppose the federal sentence running concurrent with Saling’s state sentences. The

sentence imposed was to be at the sole discretion of t he district court and the

government agreed to make no representations relative to the sentence. In addition,

it was agreed that Saling would not be permitted to withdraw his g uilty plea

because of dissatisfaction with his sentence.

At the sentencing hearing the government was represented by an Assistant

Un ited States Attorney who was not involved in the negotiation of Saling’s plea

agreement or the entry of his guilty plea. After defense counsel informed the court2 Saling was incarcerated at Carswell servi ng the sentence for one of his state

crimes and pending sentencing in this case.

3 of the details of the plea agreement and urged imposition of a concurrent sentence,

the following colloquy between the AUSA and the court occurred:

[AUSA]: Your Honor, I don’t disagree with what [defense counsel]

said about the plea agreement agreeing to concurrent sentences within

the state system. However, [my colleague] didn’t have the benefit of

t he information that we now have about the Defendant’s behavior

while he’s been incarcerated at Carswell. 2 And it’s my understanding

that . . . the probation department has made the Court aware of the

Defendant’s behavior while he’s been incarcerated.

And I’ll just point out to the Court that that ’s consistent with the

Defendant’s prior behavior while incarcerated in the Bell County jail

where he was charged with ter roristic threat when he apparently

threatened to kill another inmate within the Bell County jail.

I just encourage the Court to consider those factors when the Court

determines whe ther this should be a concurrent or a consecutive sentence....

(emphasis added).

THE COURT: Well, I understand from the information that was

furnished by the probation officer that the Defendant has been causing

a good deal of trouble where he’s presently incarcerated and has

not demonstrated the type of conduct while he’s been incarcerated

pursuant to this charge that would justify leniency by this Court....

The AUSA also informed the court about Saling’s prior convicti ons and that

charges had be en brought against him for allegedly assaulting a prison guard.

Saling was afforded an opportunity to speak in his defense, after which the court

asked the prosecutor if she had anything further to say. The AUSA added:

...And the third things [sic] is he does have a lot of time to serve.

And if we don’t send a message about these inmates who are serving

a lot of time, who have nothing to lose, if we don’t send a message to

them about how they treat the guards who are guarding them, then I

don’t see how we’re being supportive of those guards.3 United States v. Cantu, 185 F.3d 298 ( 5th Cir. 1999); U nited States v.

Valencia, 985 F.2d 758 (5th Cir. 1993).

4 United States v. Laday, 56 F.3d 24 (5th Cir. 1995).

5 Santobello v. New York, 404 U.S. 257 (1971).

6 Valencia, 985 F.2d at 761.

7 Santobello, 404 U.S. at 262-63; United States v. Grandinetti, 564 F.2d 723 (5th

Cir. 1977).

4 Saling attempted to withdraw his guilty plea during the hearing but was told it was

too late. The court subsequently denied his written motion renewing his request to

withdraw his plea. This appeal followed.

ANALYSIS

Saling contends that the government breached its p lea agreement by

advocating that the sentence imposed for the instant offense run consecutive to his

state sentences. We review d e novo whether th e government breached its plea

agree ment, 3 and the facts establishing the breach must be proven by a

preponderanc e of the evidence. 4 It is well settled that “when a plea rests in any

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

said to be part of the inducement or consideration, such promise must be fulfilled.” 5

Additionally, in determining whether a breach has occurred, we must c onsider

“whether the government’s conduct is consistent with the defendant’s reasonable

understanding of the agreement.” 6 If a breach has in fact occurred, the sentence

mus t be vacated without regard to whether the judge was influenced by the

government’s actions. 78 Grandinetti, 564 F.2d at 726 (“[T]he defendant offers his plea not in exchange

for the actual sentence or impact on the judge, but for the prosecutor’s [actions] in

court. If these [actions] are not adequate (as opposed to not successful), then the

agreement has not been fulfilled.”) (citations omitted).

5 The prosecutor’s statements to the trial judge bla tantly violated the plea

agreement’s express terms. That document makes manifest that part of the

inducement or consideration for Saling’s guilty plea was the government’s promise

not to oppose the imposition of a concurrent sentence. 8 The government contends

that no breach occurred because the prosecutor’s statements were merely an

argument for a sentence at the high end of the guide line range rather than for

consecutive sentences. We are neither persuaded nor favorably impressed by this

contention. The above-quoted language is susceptible of only one interpretation,

that is, that the prosecutor was urging in favor of a consecutive sentence, despite

her knowledge of the written agreement and the government’s express promise to

the contrary. The record makes clear that the entire colloquy between the court, the

defendant, and the AUSA was prompted by the government’s objection to defense

counsel’s request that Saling’s federal sentence be made to run concurrent with his

state sentences.

The government also claims that it was not reasonable for Saling to believe

th at the government would withhold from the court pertinent sentencing

information, such as his disruptive behavior while in custody. Again, we are not

persuaded. A prosecutor has the duty as an officer of the court to inform the court

of all factual informati o n relevant to the defendant’s sentence so that a sentence9 United States v. Goldfaden, 9 59 F.2d 1324 (5th Cir. 1992) (quoting United

States v. Block, 660 F.2d 1086 (5th Cir.Unit B Nov. 1981)).

1 0 Block, 660 F.2d at 1090-91 (entering into a plea bargain agreement does not

forfeit the government’s right “to participate in either the presentence investigation

or the sentencing hearing”).

1 1 It is unclear from the record whether the court had been made aware of

Saling’s alleged assault of a correcti ons officer prior to the sentencing hearing.

Neither the PSI nor its Addendum reflect this alleged occurrence, bu t the AUSA

indicated she was aware that the probation department had informed the court of

all of Saling’s behavior while incarcerated pending sentencing, which would have

included this incident. Even if the court did not have knowledge of this alleged

incident, however, the pros ecutor could have so informed the court and then

expressly stated that the government would not tak e a position on how such

conduct should affect Saling’s sentence due to the written plea agreement.

12 Valencia, 985 F.2d at 760.

6 may be imposed based upon a complete and accurate record. 9 This typically is

done by providing the probation officer with information to be included in the PSI

or by relating that information in open court at the sentencing hearing. 10 But that

is not what happened in the case at bar. The court à quo w as not proceeding based

on an incomplete or inaccurate factual record. The government simply attempted

to influence the judge to impose a consecutive sentence by repeating the facts of

Saling’s prior convictions and his allegedly violent condu ct while incarcerated,

most of which, if not all, previously had been disclosed to the court without

objection. 11 As we earlier have directed, “if a guilty plea is entered as part of a plea

agreement, the government must strictly adhere to the terms and conditions of its

promises.” 12

The government knowingly violated its agree ment, thus invalidating Saling’s13 United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973).

14 998 F.2d 253, 256 (5th Cir. 1993).

7 guilty plea. 13 Saling has elected to withdraw that plea rather than secure specific

performance of the agreement. In United States v. Palomo

, 14 we held:

A defendan t who alleges that a plea agreement has been

breached has the option of seeking one of two remedies on appeal: (1)

specific performance, which requires that the sentence be vacated and

that the defendant b e resentenced by a different judge; or (2)

withdrawal of the gui lty plea, and the opportunity to plead anew,

which requires vacation of both the conviction and the sentence.

Accordingly, we VACATE Saling’s conviction and sentence and REMAND

this matter to the district court for further proceedings before another judge.