* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 31 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ISMAEL RODRIGUEZ-LIRA, also known as Alfredo Garcia, Defendant-Appellant. No. 98-1235 (D.C. No. 97-CR-286-D) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cause is therefore ordered submitted without oral argument.-2-

Defendant Ismael Rodriguez-Lira entered a guilty pl ea to illegally entering the United States after having been arrested and de ported subsequent to an aggravated felony conviction. He contends on appea l that he should be able to withdraw his guilty plea or be resentenced because the district court improperly calculated his sentencing offense level and the pro secutor failed to honor the plea agreement not to oppose a downward departure. We d eny the withdrawal of the guilty plea but remand for resentencing based on th e prosecutor’s conceded failure to honor the spirit of the plea agreement. On September 7, 1996, after serving a federal sente nce for a drug related offense and then a state sentence for an aggravated felony of assault, Mr. Rodriguez-Lira was deported to his country of citze nship, Mexico. He subsequently returned to the United States and was charged with illegal re-entry, to which he pled guilty. In exchange for the plea, the government agreed not to oppose a two point downward departure and to recomm end a sentence at the low end of the guideline range. At sentencing, Mr. Rod riguez-Lira unexpectedly argued for a four point reduction in consideration of exceptional family hardship. The prosecutor responded by stating, [m]y understanding of the law as far as downward de partures is that a downward departure may be authorized when the defen dant’s situation is out of . . . the heartland of cases. . . . [I]t is not out of the heartland when someone is convicted to be deported and for the rem ainder of the family to suffer as a result. . . . So that therefore I don’tthink the fact that he had a family takes it out of the heartland. . . .-3- [He did not try] to do the right thing. . . . He ne ver said I have an emergency, my children are at grave risk because of their mother, please, Mr. United States consul, let me back in. He just came in. . . .” Aplt. App. at 136-37. In the same breath, the pros ecutor reiterated that he would honor the plea agreement not to oppose a two point downward departure. The government concedes on appeal that the prosecut or’s statements violated the spirit of the plea agreement and recom mends a resentencing before a different judge. Mr. Rodriguez-Lira asks in the al ternative to withdraw his plea agreement. We review de novo whether government conduct has vi olated a plea agreement. See United States v. Hawley , 93 F.3d 682, 692 (10th Cir. 1996). The principles of contract law govern plea agreements. See id.; United States v. Cooper , 70 F.3d 563, 565 (10th Cir. 1995). We enforce pl ea agreements to preserve the integrity of the plea and the integrity of the government, with the pragmatic benefit of encouraging future pleas. See United States v. Brye , 146 F.3d 1207, 1209 (10th Cir. 1998); Cooper , 70 F.3d at 567. As such, while we hope the government prosecutorial conduct observes an ethical standard, we require it to comply with the law. Cooper , 70 F.3d at 567. Since the government has conceded and we agree thatthe implications of the prosecutor’s statements undermine the promise n ot to oppose a downward departure, the only question is whether the breach warrants a withdrawal of the-4-

guilty plea. “When the government has breached a p lea agreement, it is generally preferable to remand the case to the district courtfor its determination as to whether defendant should be resentenced by a differ ent judge or should be allowed to withdraw his guilty plea.” Brye , 146 F.3d at 1213. In a more nuanced approach, we have restricted a remand to resentenci ng when the government’s breach is neither egregious nor intentional. See id. at 1213; cf. Hawley , 93 F.3d
at 694. In the instant case, the record indicates the prose cutor’s remarks fall short of the violation in Cooper , where we allowed the defendant to withdraw his pl ea because the prosecutor’s remarks placed the defenda nt in a sentencing range that made the plea agreement recommendation impossible a nd illegal for the court to honor. See 70 F.3d at 564-65. The situation was exacerabated there by the prosecutor’s failure to actually make the promised recommendation. See id. at 567. By contrast, the prosecutor’s comments here d id not entirely vitiate the plea agreement. The comments were far less detrimental and he reiterated several times the promise that he would not oppose a two po int downward departure. Indeed, the prosecutor “crossed the proverbial ‘lin e,’” Brye , 146 F.3d at 1213, in a manner more similar to Brye than Cooper . In Brye , the prosecutor agreed not to oppose a downward departure for dures s, but then proceeded to emphasize the lack of duress. See id. (suggesting the fight in question was “a-5-

case of mutual combatants” rather than duress). We remanded only for resentencing by a different judge, holding that the breach was not sufficiently egregious or intentional to warrant a plea withdraw al. Similarly, the prosecutor’s remarks here, while inappropriate, were ambiguous a s to severity and bad faith intent. Indeed, the remarks may have amounted to m erely challenging the two additional points of downward departure that Mr. Ro driguez-Lira unexpectedly requested and that were beyond the scope of the ple a agreement. Accordingly, we reverse Mr. Rodriguez-Lira’s sentence and remand fo r resentencing by a different judge. All other sentencing issues raised by Mr. Rodriguez -Lira are subsumed by this holding. On resentencing, he may raise with t he new sentencing judge all issues he could have raised in his original sentenc ing hearing. See United States
v. Ortiz , 25 F.3d 934, 935 (10th Cir. 1994); see also United States v. Webb , 98 F.3d 585, 587 (10th Cir. 1996).

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge