UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4808

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAGDALENO SANTIBANEZ-HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:10-cr-00018-MR-DLH-1)

Submitted: June 11, 2013 Decided: July 5, 2013

Before DAVIS, KEENAN, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Henderson Hill, Executive Director, Ann L. Hester, Assistant 

Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, 

INC., Charlotte, North Carolina, for Appellant. Anne M. 

Tompkins, United States Attorney, Amy E. Ray, Assistant United 

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Magdaleno Santibanez-Hernandez pled guilty to 

unlawfully reentering the United States after removal as an 

aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2) 

(2006). Santibanez-Hernandez pled guilty pursuant to an oral 

plea agreement, in which the Government agreed not to oppose the 

federal sentence running concurrently with SantibanezHernandez’s undischarged state sentence. On appeal, SantibanezHernandez argues that the Government breached the plea agreement 

by initially advocating for imposition of a consecutive 

sentence. We agree and, therefore, vacate the sentence and 

remand.

At sentencing, Santibanez-Hernandez’s counsel argued 

in support of a concurrent sentence. When the court sought the 

Government’s position on sentencing, the prosecutor responded

that the time that [Santibanez-Hernandez] received 

from the state, as well as the time that the [c]ourt 

may impose today is warranted. It’s a situation where 

Mr. Hernandez has engaged in drug trafficking for a 

long time, has received sentences and has not learned 

his lesson. And we do believe that there is a 

deterrent value in running his sentences consecutively

. . . . 

(J.A. 91).1

 1 “J.A” refers to the joint appendix filed by the parties.
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After Santibanez-Hernandez’s counsel noted that the 

parties had agreed during plea negotiations that the Government 

would not oppose a concurrent sentence, the Government 

acknowledged its mistake. The court suggested that the 

Government may wish to strike its argument, and the Government 

agreed, acknowledging that its argument was inconsistent “with 

[its] earlier position in this case.” (J.A. 93). The district 

court proceeded to sentence Santibanez-Hernandez to a term of 

fifty months in prison. Concluding that the Sentencing 

Guidelines generally favored consecutive sentences, the court 

declined to direct that the federal sentence run concurrently 

with Santibanez-Hernandez’s outstanding state sentence, even 

though it recognized that “ordinarily this [c]ourt would give 

much credence to . . . [a plea] agreement.” (J.A. 96).

Where, as here, a party raised the issue of breach in 

the district court, “we review the district court’s factual 

findings for clear error and its application of principles of 

contract interpretation de novo.” United States v. Lewis, 633 

F.3d 262, 267 (4th Cir. 2011) (internal quotation marks

omitted); see United States v. Diaz-Jimenez, 622 F.3d 692, 693-

94 (7th Cir. 2010) (finding defendant’s objection sufficient to 

preserve issue for appeal despite failure to renew objection 

after government’s attempt to cure breach); cf. Puckett v. 

United States, 556 U.S. 129, 133 (2009) (applying plain-error 
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standard where “at no time during [sentencing] did [defense]

counsel object that the Government was violating its obligations 

under the plea agreement”).

A plea agreement is breached when a government promise 

that induces the plea goes unfulfilled. See Santobello v. New 

York, 404 U.S. 257, 262 (1971). By initially opposing a 

concurrent sentence, the Government here did not fulfill its 

obligations under the plea agreement. See United States v. 

Peglera, 33 F.3d 412, 414 (4th Cir. 1994).

After Santibanez-Hernandez’s counsel informed the 

sentencing court of the Government’s promise, the Government 

withdrew its argument. This is not sufficient to excuse the 

Government’s failure to comply with its promise made in the plea 

agreement; “resentencing is required under Santobello regardless 

of the judge’s awareness of the government’s ‘real’ position as 

indicated in the plea agreement.” Id. (citing United States v. 

Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990)). “The Court in 

Santobello nowhere suggested that a mere withdrawal of the 

offending recommendation with substitution of the agreed 

recommendation would have been a sufficient remedy.” Kurkculer, 

918 F.2d at 302. “To excuse plea agreement breaches in light of 

later attempted mitigation would lessen the government’s duty of 

strict compliance” and thereby compromise the integrity of the 
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judicial system. United States v. Alcala-Sanchez, 666 F.3d 571, 

577 (9th Cir. 2012). 

Because the Government breached the plea agreement, we 

grant Santibanez-Hernandez the requested specific performance, 

vacate his sentence, and remand for resentencing before a 

different district judge.2 We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before this court and argument would not aid 

the decisional process.

VACATED AND REMANDED

 2 Our direction that resentencing proceed before a different 

district judge is consistent with this court’s usual practice

when a breach of a plea has occurred. See, e.g., United States 

v. Dawson, 587 F.3d 640, 648 (4th Cir. 2009). We emphasize 

“that this is in no sense to question the fairness of the 

sentencing judge.” Santobello, 404 U.S. at 263.