PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 95-9377

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D. C. Docket No. CR-495-094-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GORDON JOHNSON, a.k.a. Gordy,

Defendant-Appellant.

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No. 95-9499

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D. C. Docket No. 4:95-CR-94

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONN BURNS,

Defendant-Appellant.
2

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No. 95-9509 

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D. C. Docket No. 4:95-cr-94

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD PROCTOR, a.k.a. Ricky,

Defendant-Appellant.

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Appeals from the United States District Court

for the Southern District of Georgia

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(January 6, 1998)

 

Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior

District Judge.

________________

*Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern

District of Missouri, sitting by designation.

PER CURIAM:
 1

The three defendants raise many arguments

challenging their sentences or convictions.

Proctor argues: (1) breach of plea agreement;

(2) error for not providing a full three-point

reduction in his sentence for acceptance of

responsibility; and (3) error for enhancing his

sentence due to co-conspirator’s weapons

3

Gordon Johnson, Donn Burns, and Richard

Proctor challenge various trial rulings and

sentencing determinations. We conclude that

two reversible errors occurred as to Proctor’s

sentence: (1) Proctor’s plea agreement was

breached by the government; and (2) Proctor

was improperly denied a third point of reduction

for acceptance of responsibility. No other

reversible errors exist. So, we vacate Proctor's

sentence, remand for resentencing with

instructions; and affirm otherwise.

Discussion1
possession. Burns argues: (1) error for

enhancing his sentence due to obstruction of

justice and co-conspirator’s weapons

possession; (2) error because district court

failed to articulate reasons for his particular

sentence; and (3) error because district court

considered hearsay in sentencing him.

Johnson argues that there was insufficient

evidence to support his conviction. 

4

In 1995, Richard Proctor (Proctor) was

charged, along with seventeen others, in a

multi-count indictment. Proctor later entered

into a plea agreement with the government. The

plea agreement stated: "The government

represents that an amount of marijuana not

greater than 100 pounds should be attributed to

this defendant." The agreement also provided

that the government would "make no

recommendation as to sentence." 

Despite the agreement's plain language,

however, the later PSI -- prepared independently
5

by the court’s probation officer -- recommended

that Proctor be held accountable for 1400

pounds of marijuana. When the sentencing

court inquired into the difference between the

amount in the plea agreement and the amount in

the PSI, the Assistant United States Attorney

(AUSA) explained that another co-conspirator,

Mike Miller (Miller), was not interviewed until the

day after the plea agreement was made and that

Miller's testimony had changed the amount

involved -- in the words of the AUSA during the

sentencing hearing -- "substantially and

drastically." The AUSA also said other things

that further undermined the agreed-upon

provision in the plea agreement. Proctor

contends that this conduct -- in effect, arguing

in favor of the probation officer's finding in the
6

PSI that Proctor should be held accountable for

1400 pounds of marijuana -- was a breach of the

plea agreement. 

 "[W]hen a 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, 92 S.

Ct. 495, 499 (1971). It is not the court's role to

determine if the government made a wise choice

in entering into the plea agreement. United

States v. Rewis, 969 F.2d 985, 988 (11th Cir.

1992). Instead, the court is only responsible for

ensuring the terms of a plea agreement are

followed. Id.

Here, the government does not dispute that

the quantity limitation induced Proctor to plead
7

guilty. The government advances two

arguments in response to the claim of breach:

(1) stipulations or plea agreements between

parties are not binding on the sentencing court

under the Sentencing Guidelines; and (2) the

AUSA was not bolstering the contradictory PSI

report, but instead was simply answering the

judge’s questions, as the AUSA was required to

do as an officer of the court.

That the sentencing court is not bound by

the parties' agreements or recommendations is

well settled. But, as Proctor contends, the

AUSA, not the court, violated the plea

agreement; the sentencing judge’s acts are not

important to this issue. See Santobello, 92 S.

Ct. at 499 (remanding case for violation of plea

agreement by prosecutor even though Court
8

had no reason to doubt sentencing judge's

statement that prosecutor's recommendation

did not influence sentence). As we wrote in

United States v. Tobon-Hernandez, 845 F.2d 277,

280 (11th Cir. 1988):

[The cases the government cites] are

inapposite, however, because they deal with

the sentencing court's role. In this case, we

do not address the district court's exercise

of discretion in imposing a sentence.

Rather, we focus on the government's

violation of its plea agreement.

(emphasis added). Thus, the government's first

argument is unavailing.

The government's other argument -- that it

was merely answering the district court's

questions, not bolstering the contradictory PSI

-- is also without merit. The pertinent AUSA did

more than just answer the sentencing court's

questions. Briefly stated, the court’s questions
9

just invited the AUSA to respond to the PSI’s

conclusion that 1400 pounds of marijuana was,

in fact, involved -- and not 100 pounds as the

government had stipulated with Proctor. This

case is not one in which a prosecutor is subject

to much pointed probing by the district judge,

ultimately prying information from the AUSA

contrary to the plea agreement. In this instance,

the AUSA’s response to the PSI’s variance from

the government stipulation was for the AUSA to

choose to become, in effect, an advocate that

the sentencing court should accept the PSI’s

numbers and not the 100 pounds to which the

government had stipulated. 

Miller was the person whose testimony led

the probation officer to conclude that a large

amount of marijuana was involved in this case:
10

many, many more pounds than 100 pounds.

Faced with the PSI, the defense counsel argued

that Miller was unworthy of belief; so, the 100-

pound stipulation (or some weight close to it)

ought to be accepted by the sentencing court.

But the AUSA vouched for Miller’s credibility:

“But I, too, found Mr. Miller to be credible and

believable.”; “There’s no way that Mr. Miller

could have made that up.”; “There’s little reason

to believe that Mr. Miller has dreamed up these

poundage quantities pertaining to Mr. Proctor

out of whole cloth because they are

substantially corroborated by the testimony of

other individuals that Mr. Rasper [the probation

officer] has interviewed.” There were other

examples.
11

We stress again that these comments --

each of which undercut the stipulation on the

weight of the marijuana -- were not demanded

from an AUSA by a zealous judge. As we read

the transcript, the AUSA abandoned the

agreement he made with Proctor and became an

enthusiastic advocate for a “fact” at odds with

the “fact” to which he had stipulated. Proctor’s

plea agreement was breached by the

prosecutors. See United States v. Boatner, 966

F.2d 1575, 1579 (11th Cir. 1992) (finding

government breached plea agreement by

bolstering PSI containing recommendation that

defendant be held accountable for greater

quantity of drugs than stipulated to in

agreement).
12

Having established that the government

breached the plea agreement, we must next

consider how to rectify the situation. Two

remedies are available for the government's

breach of a plea agreement: specific

performance of the agreement or withdrawal of

the guilty plea. Santobello, 92 S. Ct. at 499.

"While the choice of a remedy is within the

discretion of the court rather than the

defendant, [however,] the remedy of withdrawal

of the guilty plea has not been favored in this

circuit." United States v. Jefferies, 908 F.2d

1520, 1527 (11th Cir. 1990). Specific performance

is particularly appropriate where, as here, no

question exists that the plea was knowingly and

voluntarily entered. Tobon-Hernandez, 845 F.2d

at 281 ("Tobon-Hernandez knowingly and
13

voluntarily entered his guilty plea. To allow him

to withdraw that plea and proceed to trial would

be unwarranted. Rather, his voluntary plea

agreement should bind him just as it binds the

government.").

In this case, we conclude that Proctor's

sentence should be vacated and that he should

be resentenced by a different judge. We,

however, do not require that the PSI be altered

because it appears that the PSI was based on

information obtained independently of the

prosecution (the party bound by the plea

agreement). On remand, the sentencing court

can make its own determinations as to the most

appropriate sentence -- being bound by neither

the plea agreement nor the PSI.
14

Proctor also contends that the district court

misapplied the sentencing guidelines by

granting only a two-level reduction, instead of

three, after it determined that Proctor accepted

responsibility under U.S.S.G. § 3E1.1. “Once

the district court has determined the defendant

has accepted responsibility, . . . the court’s

application of the guidelines is reviewed de

novo.” United States v. McPhee, 108 F.3d 287,

289 (11th Cir. 1997). Here, the district court did,

in fact, decide that Proctor was entitled to a

reduction in his offense level due to his

acceptance of responsibility. But, the district

court did not grant the full three-level reduction

-- probably because of the conflicting evidence

concerning the quantity of drugs attributable to

Proctor. The district court, however, did not
15

have the benefit of our recent decision in

McPhee, which held that “once a defendant is

awarded a two-level reduction for acceptance of

responsibility, whether or not to grant the onelevel reduction is a matter of determining only

whether the defendant timely provided

information and notified authorities of his

intention to enter a plea of guilty.” Id. at 289-90.

In this case, “the district court denied the

additional point on improper grounds”;

resentencing is necessary on this issue as well.

Id. at 290. Section 3E1.1 will require that the

sentencing court to grant an additional onepoint reduction if it determines that Proctor

accepted responsibility and did so in a timely

way.
16

VACATED and REMANDED in part;

AFFIRMED in part.