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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 09-4163

_____________

UNITED STATES OF AMERICA

v.

LEROY ROEBUCK,

 Appellant

 ____________

 

On Appeal from the District Court

of the United States Virgin Islands

District Court No. 3-09-cr-00010-001

District Judge: The Honorable Curtis V. Gomez

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 16, 2010

Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

(Filed: December 20, 2010)

 

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OPINION

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SMITH, Circuit Judge.

Leroy Roebuck pled guilty to possessing marijuana with intent to distribute on 

July 15, 2009. Under the terms of the plea agreement, the United States agreed to 

dismiss part of the indictment, to file a U.S.S.G. § 5K1.1 motion for downward departure 

at sentencing, and to specifically recommend a sentence of probation. At the sentencing 
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hearing, however, the prosecutor did not recommend probation, and instead voiced a 

recommendation of zero to six months’ imprisonment. The District Court imposed a 

sentence of six months’ imprisonment, whereupon defense counsel reminded the 

prosecutor of his commitment to recommend probation. The parties and the court 

conferred at a sidebar, where the government acknowledged that it had inadvertently 

reneged on part of its share of the plea bargain. The court did not alter its sentence, but 

instead instructed the parties to file appropriate motions. Both the government and the 

defendant complied, filing separate motions for a stay of the sentence. The court denied 

both motions on October 13, 2009. The government filed a motion for resentencing two 

days later, but the court entered judgment imposing the six-month sentence that same 

day. The defendant timely appealed his sentence, asking that the case be remanded to the 

District Court for resentencing. To its credit, the government acknowledges its error and 

supports the defendant’s request that the plea bargain be enforced. 

Whether the government has violated the terms of a plea agreement is a question 

of law to be reviewed de novo; if a violation is found the case must be remanded either 

for resentencing or for withdrawal of the guilty plea. United States v. Moscahlaidis, 868 

F.2d 1357, 1360 (3d Cir. 1989) (citing Santobello v. New York, 404 U.S. 257 (1971); 

United States v. Miller, 565 F.2d 1273 (3d Cir. 1977); United States v. Crusco, 536 F.2d 

21 (3d Cir. 1976)). We agree with the parties that the government violated the terms of 

the plea agreement by failing to recommend a sentence of probation. The prosecution 

made a commitment and admits failing to live up to it. The attempted correction at the 

sidebar conference came too late to affect the District Court’s decision and was not an 
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adequate substitute for specific performance. Accordingly, vacatur of the sentence is 

warranted. 

As to remedy, the defendant does not ask to withdraw his plea, preferring instead 

to be resentenced in accordance with the terms of his agreement. We agree that this is the 

appropriate resolution of the case, and will therefore remand with instructions that the 

defendant be resentenced by a different judge.