1 Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 2, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-40834

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOEL ANGEL GARCIA-COSTILLA,

also known as Joel Angel Garsia-Cortez,

Defendant - Appellant.

__________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:03-CR-18-1

_________________________________________________________________

Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.

PER CURIAM: 1

Joel Angel Garcia-Costilla (“Garcia”) appeals his sentence

pursuant to his guilty plea conviction for the crime of

transporting undocumented aliens within the United States by means

of a motor vehic le for private financial gain. 8 U.S.C. §§

1324(a)(1)(A)(ii) and (a)(1)(B)(i). In the oral plea agreement,

Garcia consented to plead guilty in return for the Government’s

promis e to recommend that he receive credit for acceptance of

responsibility at sentencing.

On appeal, Garcia contends that the Government breached the2

oral plea agreement by arguing against a sentencing reduction for

acceptance of responsibil ity. He seeks to have his sentence

vacated and to be re-sentenced before a different judge. U nited

States v. Gonzalez

, 309 F.3d 882, 886 (5th Cir. 2002) (stating that

a defendant alleging that the Government breached a plea agreement

may seek either a withdrawal of the guilty plea or specific

performance, requiring the sentence to be vacated and the case

remanded for re-sentencing before a different judge). Garcia

concedes that the plain error standard of review applies because he

failed to object to the Government’s alleged breach at sentencing.

See United States v. Brown , 328 F.3d 787, 790 (5th Cir. 2003).

Under the plain error standard of review, for a reviewing

court to exercise its discretion to correct an error, there must be

an error that is clear or obvious and that affects the defendant’s

substantial rights. U nited States v. Olano

, 507 U.S. 725, 732

(1993). If such an error exists, the court of appeals may, in its

discretion, correct the error. I d. The court of appeals, however,

should only exercise that discretion if t he error “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

We first address the issue of whether the Government breached

the plea agreement. “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.” United States v. Kerdachi , 756 F.2d1 At sentencing, the prosecutor said:

I th ink for obstruction of justice, I think

lying to the probation officer and basically

lying to the Court properly would warrant not

only denying acceptance, but he did the

obstruction as well because when he was

apprehended he stated to the Border Patrol

agents that he knew that the old man, as he

called him, was in the trunk....

We think that acceptance should be denied and

he should get obstruction as well.

3 349, 351-52 (5th Cir. 1985) (quoting Santobello v. New York

, 404

U.S. 257, 262 (1971)). Furthermore, if a guilty 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.” S antobello

, 404 U.S. at 262.

Garcia contends that the Government breached the plea agreement

when it argued against a downward adjustment for acceptance of

responsibility. 1 We agree. The Government’s promises in the plea

agreement induc ed Garcia to plead guilty, and the Government did

not strictly adhere to the terms of the plea agreement. We

therefore hold that the Government breached its plea agreement with

Garcia.

The Government’s breach of the plea agreement constitutes the

requisite clear or obvious error. S ee United States v. Olano

, 507

U.S. 725, 732-34 (1993). In the light of the waiver of

constitutional rights involved in a guilty plea, the Government’s4

breach of the plea agreement affected Garcia’s substantial rights.

Id. ; see United States v. Goldfaden

, 959 F.2d 1324, 1328 (5th Cir.

1992) (noting that “[d]efendants

... give up constitutional rights

i n reliance on promises made by prosecutors, implicating the Due

Process Clause once the court accepts their pleas.”). Finally, we

have no doubt that the Government’s breach of the plea agreement in

this instance also affected the fai rness, integrity, or public

reputation of judicial proceedings. Id. at 1328.

Accordingly, we find that the Government breached the terms of

the plea agreement by arguing against an adjustment for acceptance

of responsibility; that this breach constituted plain error; and

the error affected the fairness, integrity, or public reputation of

judicial proceedings. We therefore VACATE Garcia’s sentence and

REMAND the case to the district court for re-sentencing before

another judge. See Gonzalez , 309 F.3d at 886.

VACATED and REMANDED.