IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11131

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JEHONI KIERRE WILLIAMS, 

 Defendant - Appellant

Appeals from the United States District Court

for the Northern District of Texas

Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN*, District 

Judge.

LESLIE H. SOUTHWICK, Circuit Judge:*

Jehoni Kierre Williams pled guilty pursuant to a plea agreement. As 

part of the agreement, the Government said it would recommend Williams be 

sentenced at the bottom of the applicable Guidelines range. The Government 

failed to make that recommendation. Williams appeals. We VACATE and 

REMAND for Williams to elect whether to withdraw his plea or be resentenced.

 

* District Judge of the Southern District of Mississippi, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

May 9, 2016

Lyle W. Cayce

Clerk

 Case: 14-11131 Document: 00513498142 Page: 1 Date Filed: 05/09/2016
No. 14-11131

2

FACTUAL AND PROCEDURAL BACKGROUND

Jehoni Williams was charged with trafficking crack cocaine in a fourcount indictment. Williams pled guilty to one count of the indictment: intent 

to distribute cocaine base. In his written plea agreement, the Government 

agreed to dismiss the other three counts. The Government also agreed “to 

make a non-binding recommendation to [sentence Williams at] the bottom of 

the advisory guideline range found applicable in Williams’s case.” The 

Government failed to make this recommendation. Williams’s Sentencing 

Guidelines range was 151 to 188 months of imprisonment, and he was 

sentenced to 188 months. He timely appealed.

DISCUSSION

I. Plain error

Because Williams failed to make this argument in the district court, our 

review is for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). 

To demonstrate plain error, (1) “there must be an error or defect . . . that has 

not been intentionally relinquished or abandoned”; (2) “the legal error must be 

clear or obvious, rather than subject to reasonable dispute”; (3) “the error must 

have affected the appellant’s substantial rights”; and (4) “if the above three 

prongs are satisfied, [we have] the discretion to remedy the error – discretion 

which ought to be exercised only if the error ‘seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.’” Id. (quoting United 

States v. Olano, 507 U.S. 725, 736 (1993)). An error affects an appellant’s 

substantial rights when there is “a reasonable probability that, but for the 

error, he would have received a lesser sentence.” United States v. Hebron, 684 

F.3d 554, 559 (5th Cir. 2012). Though the Government concedes that all four 

factors of plain error are met here, we “give the issue independent review.” 

United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). 

 Case: 14-11131 Document: 00513498142 Page: 2 Date Filed: 05/09/2016
No. 14-11131

3

The first two plain-error factors are clearly met. As to the third factor, 

the district court sentenced Williams to the top of the applicable Guidelines

range. There is no indication the district court would have been unmoved by 

the Government’s recommendation for a lower sentence. In one case, the 

Government breached the plea agreement by failing both to file a motion for a 

two-level reduction and to recommend a sentence at the low end of the 

applicable Guidelines range. United States v. Bellorin-Torres, 341 F. App’x 19, 

20 (5th Cir. 2009). We held that there was plain error, partially because there 

was “nothing in the record to indicate that the district court would not have 

granted [the] motion . . . .” Id. While Bellorin-Torres is unpublished, its 

analysis is persuasive. Here, there is “a reasonable probability that, but for 

the error, [Williams] would have received a lesser sentence.” Hebron, 684 F.3d 

at 559. As to the last factor, “[t]he Government’s failure to fulfill its promise 

affects the fairness, integrity, and public reputation of judicial proceedings . . . 

.” United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). We therefore 

conclude there is plain error.

II. Election of relief

Williams, in his brief, requests rescission of his plea agreement. While 

the Government has conceded plain error, it argues that Williams is entitled 

only to specific performance, i.e., a resentencing with the Government fulfilling 

its promise to recommend a sentence at the low end of the Guidelines range.

We have previously held that when “the government breache[s] its plea 

agreement, [the defendant] may seek one of two remedies: (1) specific 

performance, requiring that the sentence be vacated and that a different judge 

sentence the defendant; or (2) withdrawal of the guilty plea.” United States v. 

Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). The Government never discusses 

Gonzalez in its briefing, though it was cited by Williams. Perhaps the 

 Case: 14-11131 Document: 00513498142 Page: 3 Date Filed: 05/09/2016
No. 14-11131

4

Government would argue that having a right to “seek” one of two remedies 

means only that a defendant may ask for certain relief but a district judge has 

discretion to decide. 

Additional direction comes from a case in which the Government’s 

knowing violation of its agreement invalidated the guilty plea. United States 

v. Saling, 205 F.3d 764, 767 (5th Cir. 2000). We noted that the defendant 

“elected to withdraw that plea rather than secure specific performance of the 

agreement.” Id. We then quoted a similar decision:

A defendant who alleges that a plea agreement has been breached 

has the option of seeking one of two remedies on appeal: (1) specific 

performance, which requires that the sentence be vacated and that 

the defendant be resentenced by a different judge; or (2) 

withdrawal of the guilty plea, and the opportunity to plead anew, 

which requires vacation of both the conviction and the sentence. 

Id. at 768 (quoting United States v. Palomo, 998 F.2d 253, 256 (5th Cir.1993)).

We will try to be clear. When the Government breaches a plea 

agreement, a defendant has the right (with a caveat we explain below) to have 

his chosen remedy accepted, either specific performance of the plea agreement 

and resentencing before a different judge, or withdrawal of the guilty plea. 

The Government adds to our analysis in citing United States v. 

Castaneda, 162 F.3d 832 (5th Cir. 1998). That opinion requires that we assess 

the materiality of the breach of a plea agreement when determining if relief is 

warranted. Id. at 835−36. There, the Government promised not to prosecute 

Castaneda if he cooperated. Id. at 834. After working with Castaneda for more 

than a year, the Government withdrew from the deal because it determined 

Castaneda was not entirely forthcoming with information. Id. at 836−37. 

“Castaneda countered that he gave the government considerable, accurate, and 

incriminating information . . . and that any omissions Castaneda made were 

essentially inadvertent or duplicative and thus did not amount to a material 

breach of the agreement. In so many words, he argued substantial 

 Case: 14-11131 Document: 00513498142 Page: 4 Date Filed: 05/09/2016
No. 14-11131

5

performance.” Id. at 837. We then analyzed whether the breach was material, 

determined that it was not, and concluded that the Government could not 

rescind the agreement. Id. at 837−40.

Perhaps, then, it is necessary first to find a breach to be material before 

allowing the defendant to rescind the plea agreement. There is no mention of 

materiality in the opinions of Gonzalez, Palomo, or Saling that we earlier 

discussed, and Palomo predates Castaneda. Even so, it would be reasonable 

to interpret those three opinions as dealing with material breaches. 

Regardless of whether a breach must be material before a defendant is 

allowed to elect a remedy, we conclude the breach here was material. Indeed, 

under plain-error analysis, we concluded that the breach affected Williams’s 

substantial rights and “affect[ed] the fairness, integrity, and public reputation 

of judicial proceedings . . . .” See Munoz, 408 F.3d at 226.

On remand, Williams may make a final, counseled, and enforceable 

election. Williams may rescind the entire agreement or he may be sentenced 

again by a different judge.

All pending motions are denied.

VACATED and REMANDED.

 Case: 14-11131 Document: 00513498142 Page: 5 Date Filed: 05/09/2016