UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-7417

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANCISCO LOZANO VALENCIA,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(Februaryh 24, 1993)

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DEMOSS, Circuit Judge:

I.

On February 27, 1991, Francisco Lonzano Valencia pleaded

guilty, pursuant to a plea agreement, to aiding and abetting the

possession, with intent to distribute, in excess of five kilograms

of cocaine. In exchange for Valencia's plea, the government

agreed, among other things, to stipulate that Valencia accepted

responsibility for his conduc t in accordance with USSG § 3E1.1.

Thi s would entitle Valencia to a two-level reduction in offense

level.

The Presentence Report (PSR) ordered by the Trial Court

concluded that Valencia was not entitled to the two-level reduction2

in the offense level fo r acceptance of responsibility for the

offense because Valencia did not accept responsibil ity for his

relevant conduct. Valencia objected to the PSR, among other

things, specifically on the ground that he was not entitled to that

reduction.

At the initial sentencing hearing on May 15, 1991, the

district court granted Valencia a on e-level reduction for

cooperation with the government and a one-level reduction for

acceptance of responsibility, resulting in a sentence of 120 months

plus five years of supervised release and a $50 special assessment.

Valencia appealed, challenging the propriety of his sentence.

On March 18, 1992, this Cour t vacated that sentence and

remanded for resentencing, finding that a district court may not

award a one-level reducti on for partial acceptance of

responsibility. We held that the Trial Court must either give a

two-point reduction or it may not reduce the sentence at all.

United States v. Valencia , 957 F.2d 153 (5th Cir. 1992).

Valencia was resentenced on May 22, 1992. The district court

denied Valencia any credit for acceptance of responsibility at that

proceeding but did grant him a two-point reduction for substantial

assistance, resulting in a sentence of 108 months incarceration, a

five-year term of supervised release, and a $50 special assessment.

The government argued at the resentencing that de spite its

stipulation to the contrary, Valencia "clearly

. . . should not be

entitled to any credit for acceptance of responsibility."3

Valencia again appeals, claiming that the government breached

the plea agreement when it stated that Valencia did not deserve a

two-level reduction for acceptance of responsibility.

We VACATE the sentence and REMAND for resentencing by a

different judge.

II. DISCUSSION

A t the initial sentencing on May 15, 1991, the probation

officer submitted the PSR that concluded that Valencia had denied

any involvement in the offense to which h e pleaded guilty.

Valencia 's original counsel filed objections to the PSR in an

attempt to clarify Valencia's apparent non-acceptance of

responsibility. Counsel explained that no attorney was present

when Valencia, a Colombian National who did not speak English, was

debriefed by the probation officer responsible for compiling the

PSR and that Vale ncia had been told to refrain from speaking to

anyone without his counsel present, and thus, did not talk openly

with the probation officer.

The court not ed Valencia's objection to the PSR and stated

that he was "about halfway convinced" a s to Valencia's participation in accepting responsibility. He thus gave him a one-level

reduction for that category.

At resentencing on May 22, 1992, Valencia's attorney claimed

that his client was remorseful for his conduct, fully accepted

responsibility, and had he been familiar with the debriefing, would1 Valen cia's retained attorney withdrew as his counsel after

t he initial sentencing and the Federal Public Defender was

appointed to perfect Valencia's appeal.

4 have been more forthcoming in his statements. 1 Following defense

counsel's argument, the following exchange took place in relevant

part between the trial judge and the prosecutor, Mr. Dies:

THE COURT: What is the Government's thoughts in that

regard?

MR. DIES: Your Honor, what kind of frightens me a little

bit is counsel's assertion that today the defendant is

more remorseful and accepts more his responsibility than

he did at the initial plea of gui lty. Is that to say,

then, your Honor, logically extending the argument, that

if we somehow mess up today and it gets reversed or

remanded, then we come back four months later, if the

defendant is even more remorseful in four mont hs from

now, he gets more credit?

My position is, Your Honor, that although we may

have at the outset agreed by a plea bargaining that this

defendant accepted responsibility for his conduct, he

failed to demonstrate that to you on the record with his

debriefing and with the written statement, and clearly,

Your Honor, he should not be entitled to any credit for

acceptance of responsibility

. It was incumbent upon the

defendant, not the lawyers and their skills, to show the

Court acceptance of responsibility. I am of the opinion,

Your Honor, from the facts today and the facts at the

entry of the plea of guilty, that the defendant by his

assistance to authorities, by his debriefs, played a

substantial role in the resolution of the case over all

and is entitled to a reduction that you see fit for

substantial assistance, but nothing because he hasn't

demonstrated to you, Your Honor, a true accep tance of

responsibility . (emphasis added).

Defense counsel immediately objected that the government had

bre ached the plea agreement with this statement and demanded

specific performance of the plea agreement.

The district court ruled on the objection and stated:

"Specifically, the court notes for the record its perception that5

it respectfully requested a response from Mr. Dies earlier with

regard to this issue. Mr. Dies was therefore duty bound to make

some offering to the court. The court does not characterize that

as a breach of the agreement that induced this defendant to plead

guilty in this case for any purpose."

The government relies upon United States v. Hand

, 913 F.2d 854

(10th Cir. 1990) to support its contention that the government need

not stand mute in the face of incorrect or misleading testimony.

It points out that the Hand court held that the prosecutor, who had

agreed t o recommend that the defendant receive a reduction in

sentence for having a minor role in the offense, had a right to

cross examine the defendant in l ight of incorrect or misleading

testimony offered to the trial court.

Noting the court's ruling on Valencia's objection to the

prosecutor's comments in question, the government now argues that

no breach occurred because the prosecutor was merely c orrecting

inaccurate factual representations and responding to an inquiry by

the court. The government also argues that because the district

court found that the government did not breach the plea agreement

the finding must be reviewed under the clearly erroneous standard.

Even if a breach occurred, the government contends the breach

constituted harmless error because the prosec utor's argument did

not influence the judge's decision and therefore Valencia would end

up in the same position.

Whether the gover nment's conduct violates the terms of the

plea agreement is a question of law. U nited States v. Badaracco

,6

954 F.2d 928 (3rd Cir. 1992). A breach of a plea agreement

constitutes plain error and our review is de novo

. United States

v. Goldfaden , 959 F.2d 1324, 1328 (5th Cir. 1992).

The principles governing the government's obligation to honor

the terms of a plea agreement are well-settled. 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.2d 349, 351-52 (5th Cir. 1985).

United States v. Badaracco

, 954 F.2d 928. Furthermore, when 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."

Santobello v. New York

, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed.

2d 427 (1971). In determining whether the terms of a plea

agreement have been violated, the court must determine whether the

government's conduct is consistent with the defendant's reasonable

understanding of the agreement. United States v. Huddleston , 929

F.2d 1030, 1032 (5th Cir. 1991). Furthermore, if it is determined

that a plea agreement has been breached, "specific performance [of

the agreement] is called for, [and] Appellant must be sentenced by

a different judge." United States v. Goldfaden , 959 F.2d 1324 at

1329 (citing Santobello

, 404 U.S. at 263); see also

, United States

v. Badaracco , 954 F.2d 928 at 938-39, 941.

None of the government's arguments are persuasive.

We observe f irst that the government mischaracterizes its

obligation under the plea agreement, which plainly provides that7

the parties stipulated that Valencia accepted responsibil ity for

his offense in the following words:

The United States stipulates that I have accepted

responsibility for my actions (§ 3E1.1 Sentencing

Guidelines).

Plea Agreement , 13(c).

While the government correctly argues that it may correct

factual inaccurac ies in the record, U nited States v. Goldfaden

,

959 F.2d at 1328; and that post-sentencing remorse should not be

considered by the judge in determining whether to cre dit the

defendant for acceptance of responsibility, it can not argue that

the other evidence in the case establishes that Valencia was not

entitled to a reduction for acceptance of responsibility.

"If the s tipulation bargained for by [defendant]--and for

which he `surrender[ed]

. . . certain constit utional rights

including a meaningful restriction of his liberty '--is to mean

anything, it must preclude remarks like the government made here."

United States v. Badaracco , 954 F.2d 928 at 941.

Furthermore, the government cann ot rely on U nited States v.

H and , 915 F.2d 854 to justify its behavior at resentencing. The

Hand court distinguished that case from cases such as this one

where a prosecutor promised a recommendation and then proceeded to

argue the opposite position. The prosecutor in Hand presented no

direct evidence that the defendant played more than a minor role

nor did he characterize the evidence elicited on cross-examination,

nor argue the effect of the evidence to the sentencing judge.

H ere, the prosecutor did characterize the evidence and did

argue the effect of the evidence to the j udge. Here, the8 c:br:opin:92-7417:jm prosecutor argued the opposite position in plain violation of the

language of the plea agreement.

Finally, the government's argument that harmless error

analysis should be applied here because the judge did not base its

holding upon the government's recommendation fails.

The interest of justice and standards of good faith in

negotiating plea bargains require reversal where a plea bargain is

breached. Santobello v. New York, 404 U.S. at 262-63. A lesser

standard would permit the government to make a plea bargain

attractive to a defendant, subsequently violate the agreement and

then argue harmless error, thereby defrauding the defendant.

Here we find that the comments made by the prosecutor to the

court in support of the denial of credit for acceptance of

responsibility by Valencia breached the plea agreement between the

parties and therefore constitutes reversible error.

III. CONCLUSION

On appeal, Valencia has elected specific performan ce rather

than withdrawal of his plea as his remedy.

We VACATE Valencia's sentence and REMAND to the district court

with instruction that it transfer this matter to another judge who

will resentence Valencia in accordance with the re quirements of

this opinion. S ee Santobello v. New York

, 404 U.S. at 263 and

United States v. Goldfaden

, 959 F.2d at 1329. We intimate no view

as to what determination should be made, on remand, on the issue of

acceptance of responsibility.