UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4757

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JESUS PEREZ-LAGUNA, a/k/a Manuel, 

 Defendant - Appellant. 

No. 08-4758

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JESUS PEREZ-LAGUNA, a/k/a Manuel, 

 Defendant - Appellant. 

Appeals from the United States District Court for the District 

of South Carolina, at Columbia. Joseph F. Anderson, Jr., 

District Judge. (3:07-cr-00468-JFA-1; 3:07-cr-01162-JFA-1) 

Submitted: October 22, 2009 Decided: December 16, 2009 

Before NIEMEYER, KING, and AGEE, Circuit Judges. 
Affirmed in part; vacated and remanded in part by unpublished 

per curiam opinion. 

Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South 

Carolina, for Appellant. W. Walter Wilkins, United States 

Attorney, Mark C. Moore, Assistant United States Attorney, 

Columbia, South Carolina; Loretta King, Acting Assistant 

Attorney General, Dennis J. Dimsey, Conor B. Dugan, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

 Following a guilty plea, Jesus Perez-Laguna was 

convicted of conspiracy to commit an offense against the United 

States, sex-trafficking a minor for private financial gain, 

interstate transport of a minor with intent to engage in 

prostitution, importing and harboring an alien for the purpose 

of prostitution, and recruiting a minor to engage in a 

commercial sex act, in violation of 18 U.S.C.A. §§ 2, 371, 1591, 

1594(a), 2423(a) (West 2000 & Supp. 2009), and 8 U.S.C.A. § 1328 

(2006). The district court sentenced Laguna to 170 months’ 

imprisonment. 

 Perez-Laguna’s counsel filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), concluding that no 

meritorious issues for appeal exist, but questioning whether the 

Government breached the plea agreement. Perez-Laguna asserted 

in his pro se supplemental brief that the Government and the 

U.S. Probation Office breached his plea agreement and the 

district court incorrectly determined his offense level when 

calculating his Sentencing Guidelines range. He asks for a new 

sentencing hearing. We previously denied the Government’s 

motion to dismiss and now consider the merits of the appeal. 

 The government breaches a plea agreement if a promise 

that induced the plea goes unfulfilled. Santobello v. New York, 

404 U.S. 257, 262 (1971). A criminal defendant who asserts the 

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government breached a plea agreement bears the burden of proving 

such a breach by a preponderance of the evidence. United 

States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). 

 This court reviews the interpretation of plea 

agreements de novo. United States v. Jordan, 509 F.3d 191, 195 

(4th Cir. 2007). Interpretation of plea agreements is guided by 

contract law “to ensure that each party receives the benefit of 

the bargain.” Id. Due to the constitutional implications of a 

guilty plea, this court holds “‘the Government to a greater 

degree of responsibility than the defendant . . . for 

imprecisions or ambiguities in plea agreements.’” Id. at 196 

(quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 

1986)). In other words, courts should interpret ambiguities in 

the agreement in the defendant’s favor. Harvey, 791 F.2d at 

303. Courts should apply the plain language of the agreement 

and “‘not write the contracts of the parties retroactively.’” 

Jordan, 509 F.3d at 195 (quoting United States v. Race, 632 F.2d 

1114, 1119 (4th Cir. 1980)). 

 Perez-Laguna argues here, as he did below, that the 

disputed provision of the plea agreement unambiguously requires 

the Government to move for an additional third level of 

reduction if he qualified for the two-level reduction in U.S. 

Sentencing Guidelines Manual § 3E1.1(a) (2006). When the 

district court applied the decrease under § 3E1.1(a), it 

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necessarily found that Perez-Laguna qualified for that decrease, 

triggering the Government’s duty to move for the additional 

decrease permitted by § 3E1.1(b). The Government argues that 

the plea agreement required it to move for a third level of 

reduction only if Perez-Laguna “readily” demonstrated acceptance 

of responsibility, and that one can interpret the contract 

another way only by taking its terms out of context. The 

Government asserts that Perez-Laguna did not qualify for any

decrease under § 3E1.1(a) because he did not “readily 

demonstrate[] acceptance of responsibility for his offenses,” 

but the Government nonetheless “refrained from arguing against 

the two-level reduction out of generosity.” The Government’s 

argument is thus grounded in the difference in terminology 

between the plea agreement’s requirement that Perez-Laguna 

“readily” demonstrate acceptance of responsibility and the 

Guidelines’ standard that the district court may reduce a 

defendant’s offense level if he “clearly” demonstrates such 

acceptance. See USSG § 3E1.1. 

 The Government’s argument confirms that the disputed 

provision is, at best, ambiguous. The parties’ statements 

during the sentencing hearing indicate that they had conflicting 

understandings of the provision. Under the plea bargaining 

principles stated above, the provision must be construed in the 

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defendant’s favor.* Thus, we conclude the Government breached 

the plea agreement when it failed to move for a third level of 

reduction for acceptance of responsibility. See United 

States v. Cachucha, 484 F.3d 1266, 1270 (10th Cir. 2007) 

(holding that the government breached the agreement to recommend 

a certain Guidelines range apply when it argued that the 

applicable range was “way too low”); Dunn v. Colleran, 247 F.3d 

450, 459-64 (3d Cir. 2001) (finding the government breached plea 

agreement by requesting a “lengthy” and “considerable” term of 

incarceration rather than a sentence between three and five 

years as agreed, even though the defendant refused to accept 

responsibility for his actions); United States v. Goings, 200 

F.3d 539, 544 (8th Cir. 2000) (holding the government breached 

the plea agreement by not affirmatively recommending a downward 

adjustment for acceptance of responsibility). 

 Where the government breaches its plea agreement 

obligations regarding sentencing, the remedy may be either 

specific performance of the agreement or the opportunity for the 

defendant to withdraw the guilty plea. Santobello, 404 U.S. at 

 * “This does not mean that in a proper case it might not be 

possible to establish by extrinsic evidence that the parties to 

an ambiguously worded plea agreement actually had agreed--or 

mutually manifested their assent to--an interpretation as urged 

by the Government.” United States v. Harvey, 791 F.2d 294, 303 

(4th Cir. 1986). 

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263. When remand for resentencing is appropriate, a different 

judge should ordinarily be assigned. Id. (emphasizing “that 

this is in no sense to question the fairness of the sentencing 

judge”). 

 Perez-Laguna argues in his pro se brief that the 

district court and U.S. Probation Office breached his plea 

agreement by applying USSG § 2A3.1 to determine his offense 

level, the Government breached the plea agreement by not 

objecting to the presentence report’s application of USSG 

§ 2A3.1, and the district court incorrectly applied USSG § 2A3.1 

to determine his offense level. We have reviewed the record and 

find these contentions lacking in merit. 

 Perez-Laguna has not sought to withdraw his plea and 

requests remand of his case for resentencing. Accordingly, we 

affirm the convictions, vacate the sentence, and remand for 

resentencing before a different judge. In accordance with 

Anders, we have reviewed the record in this case and have found 

no other meritorious issues for appeal. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before the court and argument would 

not aid the decisional process. 

AFFIRMED IN PART; 

VACATED AND REMANDED IN PART