United States v. Jacobi Tavares Hunter , 835 F.3d 1320 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12640
________________________
D.C. Docket No. 9:14-cr-80209-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOBI TAVARES HUNTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 26, 2016)
Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, ∗ District
Judge.
∗
Honorable William T. Moore, United States District Judge for the Southern District of
Georgia, sitting by designation.
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WILSON, Circuit Judge:
Jacobi Hunter appeals his 60-month sentence, imposed after he pleaded
guilty to drug-related charges pursuant to a written plea agreement. On appeal,
Hunter contends that the government breached the plea agreement by failing to
recommend a reduction for acceptance of responsibility at sentencing. We agree.
Hunter was induced to plead guilty to all charges against him based, in part, on the
promise that the government would recommend the reduction on his behalf. The
government not only failed to recommend the reduction at sentencing, but also
objected to and argued against Hunter receiving the reduction based on facts it
knew prior to offering the plea deal. This conduct constitutes a breach of the
agreement entered into by the parties. Accordingly, we vacate Hunter’s sentence
and remand to the district court for resentencing.
I. BACKGROUND
A federal grand jury indicted Hunter on four charges of possession with
intent to distribute marijuana, cocaine, crack cocaine, and heroin, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C)–(D). These charges arose from a traffic stop,
wherein officers had stopped Hunter for illegal window tint on his vehicle, and,
after detecting marijuana, ordered Hunter out of his car and frisked him. Hunter
filed motions to dismiss and to suppress the evidence obtained during the stop,
which the district court heard and denied.
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During the hearing on those motions (the “suppression hearing”), which took
place on February 4, 2015, with both parties present, the district court explicitly
found that Hunter’s testimony regarding some of the facts leading up to the traffic
stop was not credible. Specifically, the officers had testified that Hunter was
driving south on Congress Avenue and had oversteered into a right turn onto west
Blue Heron Boulevard when they pulled him over for his illegal window tint, but
Hunter testified that he was driving west on Blue Heron Boulevard, not Congress
Avenue, and had not oversteered. Acknowledging these factual discrepancies, the
district court found that “Hunter’s testimony [wa]s not credible in this regard.”
After the suppression hearing, the government extended a plea deal. The
written plea agreement provided that Hunter would plead guilty to all four charges
brought against him, with the following relevant stipulation (the “acceptance-of-
responsibility reduction”):
The United States agrees that it will recommend at
sentencing that the Court reduce by two levels the
sentencing guideline level applicable to the defendant’s
offense, pursuant to [§] 3E1.1(a) of the Sentencing
Guidelines, based upon the defendant’s recognition and
affirmative and timely acceptance of personal
responsibility. If at the time of sentencing the
defendant’s offense level is determined to be 16 or
greater, the government will make a motion requesting an
additional one level decrease . . . stating that the
defendant has assisted authorities in the investigation or
prosecution of her [sic] own misconduct by timely
notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid
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preparing for trial and permitting the government and the
Court to allocate their resources efficiently.
Hunter accepted this deal and, on March 4, 2015, pleaded guilty at a change-of-
plea hearing in the district court.
The United States Probation Office prepared a presentence investigation
report (PSI) that included a two-level increase for obstruction of justice and did not
include a reduction for acceptance of responsibility. Hunter submitted several
objections to the PSI, including objections to the enhancement for obstruction of
justice and the failure to include an acceptance-of-responsibility reduction. The
government did not request the reduction for acceptance of responsibility. Instead,
the government filed a motion seeking an upward departure or variance from the
recommended guidelines range. In response, Hunter filed a motion seeking a
downward variance due to, inter alia, the physical and mental harm he allegedly
suffered during his arrest.
At sentencing, Hunter objected to the exclusion of the acceptance-of-
responsibility reduction from the PSI, arguing that the government’s failure to
recommend the reduction was a violation of the plea agreement. The government
again did not recommend the reduction. Instead, it officially objected to Hunter
receiving the reduction and argued for an enhancement. The government
maintained that it was not obligated by the plea agreement to seek a reduction for
acceptance of responsibility if the court concluded that Hunter had obstructed
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justice by committing perjury during his suppression hearing, even though the
hearing took place before the plea deal was offered. Arguing that this failure to
recommend the reduction constituted a breach, Hunter sought specific performance
by the government and to have the case reassigned to another judge.
The district court found that the government had not breached the plea
agreement, but it expressed concern that “the Government seems to give with one
hand and take back with the other, because a defendant . . . would believe if he
signed this agreement that he was going to get the acceptance of responsibility.”
Thus, the district court held it would give Hunter the acceptance-of-responsibility
reduction to “solve this,” recognizing that “the decision to plead guilty is an
enormously important decision.” The government subsequently conceded that,
given the district court’s ruling, Hunter was “probably” entitled to a three-level
reduction. The government then argued its motion for an upward departure or
variance. In light of its rulings during the hearing, the court recalculated the
applicable guidelines range as 18 to 24 months’ imprisonment. Over Hunter’s
objections, the district court imposed a 60-month sentence. This appeal followed.
II. DISCUSSION
As a threshold matter, Hunter’s conditional plea agreement reserved the
right to appeal only the denial of his motion to suppress physical evidence and
waived other challenges. However, an appeal waiver does not bar a defendant’s
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claim that the government breached the plea agreement. United States v. Puentes-
Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015); United States v. Gonsalves, 121
F.3d 1416, 1419 (11th Cir. 1997). Thus, we may consider Hunter’s appeal.
Hunter preserved his objection to the purported breach of the plea agreement
in the district court, and the parties agree on the facts material to this appeal.
Accordingly, we must determine only whether the government’s undisputed
conduct breached the plea agreement. We review this legal issue de novo. United
States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). We first address
whether the government breached its agreement with Hunter. Concluding that it
did, we then turn to the appropriate remedy.
A. Breach
“[A] plea agreement must be construed in light of the fact that it constitutes
a waiver of substantial constitutional rights requiring that the defendant be
adequately warned of the consequences of the plea.” United States v. Jefferies,
908 F.2d 1520, 1523 (11th Cir. 1990) (internal quotation marks omitted). “A
material promise by the government, which induces a defendant to plead guilty,
binds the government to that promise.” United States v. Thomas, 487 F.3d 1358,
1360 (11th Cir. 2007) (per curiam) (citing Santobello v. New York, 404 U.S. 257,
262, 92 S. Ct. 495, 499 (1971)). Hence, the government breaches a plea agreement
when it fails to perform the promises on which the plea was based.
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“Whether the government violated the agreement is judged according to the
defendant’s reasonable understanding at the time he entered his plea.” United
States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). We apply an objective
standard to “decide whether the government’s actions are inconsistent” with the
defendant’s understanding of the plea agreement, Copeland, 381 F.3d at 1105,
rather than reading the agreement in a “hyper-technical” or “rigidly literal”
manner, United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992) (internal
quotation marks omitted).
In exchange for Hunter’s promise to plead guilty to all four charges in his
indictment, the government promised to recommend a reduction for acceptance of
responsibility at sentencing. Yet, at sentencing, the government did not
recommend the reduction. In fact, the government objected to and argued against
Hunter receiving the reduction. Viewed objectively, “the government’s actions are
inconsistent with what the defendant reasonably understood when he entered his
guilty plea.”1 See Copeland, 381 F.3d at 1105 (internal quotation mark omitted);
cf. United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“It is certainly
inconsistent with a defendant’s reasonable understanding of a promise not to
contest a reduction for acceptance of responsibility for the government to add its
1
The government’s statement at the sentencing hearing that Hunter was “probably”
entitled to the three-level reduction occurred after the district court had already ruled that it
would give Hunter the reduction. This perfunctory, after-the-fact concession does not constitute
the recommendation for which Hunter bargained.
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voice in support of the PSI recommendation that the defendant receive no such
reduction.”).
It is clear that Hunter reasonably understood the government would
recommend the acceptance-of-responsibility reduction on his behalf at sentencing.
The promise to recommend the reduction was a key material concession made by
the government in the plea agreement. 2 The government did not drop any counts
in the indictment or promise to make any other recommendations to the court that
might potentially reduce Hunter’s sentence. And the government does not dispute
that its promise to recommend an acceptance-of-responsibility reduction was a
significant factor in Hunter’s decision to accept the plea agreement and waive his
right to a trial. Consequently, Hunter waived his substantial right to have the
government prove each charge against him beyond a reasonable doubt before a
jury of his peers as part of the consideration for the government’s promise to
recommend the acceptance-of-responsibility reduction. Thus, the government’s
failure to recommend the reduction violated the plea agreement reached by the
parties. See Santobello, 404 U.S. at 262, 92 S. Ct. at 499 (“[W]hen a plea rests in
any significant degree on a promise or agreement of the prosecutor, so that it can
2
The only other concession the government made was to allow Hunter to enter a
conditional plea permitting an appeal of the denial of the suppression motion, pursuant to Fed. R.
Crim. P. 11(a)(2). Hunter chose not to appeal the denial of his suppression motion, electing to
appeal only as to breach and sentencing.
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be said to be part of the inducement or consideration, such promise must be
fulfilled.”).
However, the government maintains that no reversible error exists because it
was excused from recommending the reduction. Under the terms of the plea
agreement, the government was released from its obligation to recommend the
reduction if Hunter:
(1) fails or refuses to make a full, accurate and complete
disclosure to the probation office of the
circumstances surrounding the relevant offense
conduct;
(2) is found to have misrepresented facts to the
government prior to entering into this plea
agreement;
(3) committed any act inconsistent with the acceptance
of responsibility pursuant to USSG § 3C1.1; or,
(4) commits any misconduct after entering into this plea
agreement . . . .
The government contends that the second exception (the “misrepresentation
exception”) and/or the third exception (the “inconsistent act exception”) were met
here. In support, the government points to the district court’s explicit finding at the
suppression hearing: the testimony by Hunter regarding which road his car was on
and whether he crossed the safety line was not credible. Thus, on appeal, as before
the district court, the government argues that the district court’s credibility finding
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at the earlier suppression hearing is the sole and sufficient basis for releasing the
government from its obligation.
We are unpersuaded. Neither the misrepresentation exception nor the
inconsistent act exception excuses the government from its obligation to
recommend the acceptance-of-responsibility reduction: the government cannot
avail itself of the exceptions based solely on facts of which it was aware prior to
entering the plea agreement. Such a practice would render the government’s
promise to recommend the reduction illusory and defy a defendant’s reasonable
understanding of the plea agreement.
The district court expressly made its finding that Hunter’s testimony during
the suppression hearing was not credible before the negotiation of the plea
agreement, in the presence of both parties. This undisputed fact is dispositive.
At the time the government offered to recommend the reduction, it had full, current
knowledge of Hunter’s non-credible testimony. That cannot be sufficient to trigger
either the misrepresentation exception or the inconsistent act exception. If, at the
time it offered the plea agreement, the government was aware of facts that would
allow it to employ the exceptions and avoid its promise therein, then it would be
extending an illusory promise. The plea agreement—which is a contract between
the parties—would fail from the outset due to a lack of valid consideration. We
will not construe the agreement in this manner. See, e.g., M&G Polymers USA,
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LLC v. Tackett, 574 U.S. ___, ___, 135 S. Ct. 926, 936 (2015) (observing that
courts are “instruct[ed] . . . to avoid constructions of contracts that would render
promises illusory because such promises cannot serve as consideration for a
contract”).
Moreover, a defendant would not have reasonably understood that the plea
agreement allowed the government to evade its promise to recommend the
acceptance-of-responsibility reduction. It has long been the rule in our circuit that
the defendant’s reasonable understanding of the agreement at the time of his plea
controls our inquiry into the putative breach, see, e.g., Copeland, 381 F.3d at 1105,
but the government failed to offer any argument in its brief that Hunter reasonably
should have understood that the government could opt out of recommending the
reduction. Perhaps that is because this would be a tough argument to make: a
defendant would not have reasonably understood that the government could renege
on recommending the reduction. As discussed above, the government knew
Hunter had given non-credible testimony at the suppression hearing before it
drafted, offered, and executed the plea agreement in which it promised to argue for
an acceptance-of-responsibility reduction. Likewise, at the time of receiving the
proffered plea deal, Hunter knew the government was aware the district court
found his testimony to be non-credible. Viewed objectively, Hunter would not
have reasonably understood the terms of his plea agreement to mean he was
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forfeiting a core constitutional right in exchange for a promise the government was
already excused from fulfilling—in other words, an empty promise. See In Re
Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986) (per curiam) (“To constitute a valid
waiver of substantial constitutional rights, a guilty plea . . . must be offered with
sufficient awareness of the likely consequences.” (citing Brady v. United States,
397 U.S. 742, 748, 90 S. Ct. 1463, 1468–69 (1970)).
Our conclusion as to Hunter’s reasonable understanding of the agreement is
bolstered by the timeline of events in this case. See Rewis, 969 F.2d at 988
(instructing reviewing courts to consider the plea agreement against the
background of the plea negotiations). The plea bargaining process began directly
after the suppression hearing. As Hunter’s defense attorney recounted at the
sentencing hearing, “as soon as . . . motions were concluded and the [c]ourt ruled
[at the suppression hearing], [the Assistant United States Attorney (AUSA)
representing the government] and I had a conversation where he agreed to prepare
a plea agreement.” Hunter soon thereafter accepted the agreement, entering his
change-of-plea only one month after the hearing. Therefore, the district court
made an explicit finding of non-credibility at the suppression hearing—with both
parties present—immediately before the government offered the plea deal. No
significant time elapsed between the district court’s explicit finding of non-credible
testimony and the government’s proffer of a plea agreement premised on the
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acceptance-of-responsibility reduction such that we could believe either party had
overlooked or forgotten this finding.
Given that both parties were present when the district court explicitly found
Hunter’s testimony not to be credible, and that the government then offered to
recommend a reduction if Hunter pleaded guilty, it was reasonable for Hunter to
believe that the promised recommendation would be forthcoming, notwithstanding
the pre-agreement conduct of which the government was well aware. Indeed, the
district court noted as much, stating: “[A] defendant . . . would believe if he signed
this agreement that he was going to get the acceptance of responsibility.” Under
the objective standard by which we evaluate plea agreements, this is precisely what
renders the government’s conduct a breach. We disagree with the district court’s
conclusion to the contrary.
The government attempts to refute this conclusion by pointing to the text of
the plea agreement. To succeed on its argument, the government must convince us
that, based on the language of the above-discussed misrepresentation exception and
inconsistent act exception, Hunter reasonably should have known that the
government was not required to recommend the reduction. See Copeland, 381
F.3d at 1105. We are not convinced. The government’s interpretation of the
exceptions is in fact inconsistent with the text.
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The misrepresentation exception states that the government is excused from
its obligation if a misrepresentation “is found.” The government wants us to read
this phrase as including misrepresentations that are “already known.” However, a
more reasonable reading is that this clause anticipates later discovery of
dishonesty. See Rewis, 969 F.2d at 988 (noting that, to the extent any term in the
agreement is ambiguous, we construe it against the government). That is to say,
the exception most reasonably covers a scenario where the government extends an
offer, the defendant accepts, and the government only then discovers that the
defendant had been dishonest during or prior to the plea negotiation. In such a
circumstance, we would have little trouble concluding that the government was
excused from its obligation. Yet, in the present case, there were no newly found
misrepresentations; the government did not discover dishonesty or additional
misconduct. We cannot conclude that, based on a straightforward reading of this
text, Hunter should have reasonably understood his earlier suppression hearing
testimony to implicate this exception. Consequently, the misrepresentation
exception does not excuse the government from its obligation.
Separately, the inconsistent act exception excuses the government if Hunter
“committed any act inconsistent with the acceptance of responsibility pursuant to
USSG § 3C1.1.” The government contends that, under this exception, it was only
required to recommend the reduction if the district court did not apply an
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obstruction-of-justice enhancement based on Hunter’s suppression hearing
testimony. In other words, according to the government, it had the right to seek an
obstruction-of-justice enhancement based on Hunter’s earlier “inconsistent act”
(or, to wait and see whether the district court made such a finding), and it only had
to recommend the acceptance-of responsibility reduction if the court did not apply
the enhancement.
This complicated interpretation of the exception is belied by the agreement’s
plain language. Nowhere does the agreement suggest that the government’s
promise to recommend the acceptance-of-responsibility reduction was contingent
on some condition precedent, such as the district court failing to find an
obstruction of justice.3 If the government intended to condition its obligation to
recommend the reduction on a specific ruling with regard to an obstruction
enhancement, then it should have made that condition express. Moreover, we will
not read the affirmative language that the government will recommend the
reduction as intending to do the opposite—placing itself in an inconsistent position
by hoping for the opposite of its promise, and only upon receiving an adverse
3
In fact, even if the district court had found obstruction of justice, such a finding would
not excuse the government from its obligation to recommend the acceptance-of-responsibility
reduction: the Sentencing Guidelines explicitly anticipate that adjustments under both the
obstruction enhancement and the acceptance reduction may apply in some cases. See U.S.S.G. §
3E1.1 n.4. Additionally, the record contradicts the government’s argument. The transcript of the
sentencing proceedings demonstrates that the government immediately and explicitly objected to
Hunter receiving the acceptance-of-responsibility reduction. Thus, as a matter of both law and
fact, the government’s obstruction-of-justice argument is a non-sequitur.
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ruling fulfilling the express promise it made to the defendant. This type of “heads
I win, tails you lose” interpretation is incompatible with the plea bargaining
process.
For these reasons, we are not persuaded that any language in the plea
agreement excused the government from its obligation to recommend the
acceptance-of-responsibility reduction at sentencing. The government referred to
the exceptions paragraph in the plea agreement as its “escape clause.” But to
accept the government’s argument is to accept that the government could make a
promise it knew it did not have to keep; it could induce a guilty plea in exchange
for nothing. That is not an escape clause—it is a trap door.
In sum, to obtain Hunter’s guilty plea to all charges in the indictment, the
government agreed to recommend a reduction for acceptance of responsibility.
However, the government not only failed to recommend the reduction at Hunter’s
sentencing, but, in the face of Hunter’s continued objection that this refusal
constituted a breach of the plea agreement, the government persisted in actively
and formally opposing the reduction. There is no viable excuse for this conduct; it
constitutes a significant and deliberate breach of the plea agreement.
B. Remedy
When a breach of the plea agreement is established and an objection to the
breach was preserved, “automatic reversal is warranted.” Puckett v. United States,
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556 U.S. 129, 141, 129 S. Ct. 1423, 1432 (2009) (citing Santobello, 404 U.S. at
261–62, 92 S. Ct. at 498–99). In such circumstances, reversal is based “upon a
policy interest in establishing the trust between defendants and prosecutors that is
necessary to sustain plea bargaining—an essential and highly desirable part of the
criminal process.” Id., 129 S. Ct. at 1432 (internal quotation marks omitted).
Since we conclude that the government breached the plea agreement and Hunter
preserved his objection to that breach, reversal is required.
Additionally, Hunter is entitled to a remedy. Under our precedent, “[t]here
are two remedies available when a plea agreement is breached: (1) remand the case
for resentencing according to the terms of the agreement before a different judge,
or (2) permit the withdrawal of the guilty plea.” Rewis, 969 F.2d at 988–89; see
Boatner, 966 F.2d at 1580. The choice between these two remedies is within our
discretion, although withdrawal of the plea is less favored in our circuit. See
Jefferies, 908 F.2d at 1527 (collecting cases favoring specific performance).
Hunter does not wish to withdraw his plea. Instead, he requests remand and
resentencing before a different judge. Hunter’s guilty plea was clearly induced by
the government’s promise to recommend an acceptance-of-responsibility
reduction. The government is therefore bound to that promise, and Hunter is
entitled to specific performance of the terms of the agreement as he reasonably
understood them at the time of his plea. Accordingly, as it is within our discretion
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to do, we remand for resentencing according to the terms of the agreement before a
different judge. See United States v. Tobon-Hernandez, 845 F.2d 277, 281 (11th
Cir. 1988) (exercising discretion “in favor of specific performance” and remanding
“for resentencing by another judge in compliance with the plea agreement”).
The government objects to this result, taking the position that, irrespective of
breach, Hunter is not entitled to any remedy. In the government’s view, Hunter
already got exactly what he bargained for because the district court applied the
acceptance-of-responsibility reduction. However, this position is irreconcilable
with the Supreme Court’s decision in Santobello. There, the Court reversed even
though the district court had explicitly stated that the government’s sentencing
recommendation (which the Court found to be in breach of the parties’ agreement)
did not influence its sentencing decision. Santobello, 404 U.S. at 262, 92 S. Ct. at
499. We similarly reverse where the district court disregarded the government’s
failure to recommend—and objection to—the acceptance-of-responsibility
reduction.4
4
The government’s reliance on Puckett to claim Hunter must show the breach affected
his sentence is inapposite. Puckett was decided under plain-error review and did not purport to
overrule Santobello in the preserved-error context. Puckett, 556 U.S. at 140–41, 129 S. Ct. at
1432. To the contrary, Puckett reaffirmed the Supreme Court’s holding in Santobello that
“automatic reversal is warranted when objection to the government’s breach of a plea agreement
has been preserved.” Id. at 141, 129 S. Ct. at 1432. And no binding precedent from either this
court or the Supreme Court permits deviation from Santobello in the preserved-error context.
Thus, for a breach that was objected to in the proceedings below, Santobello remains the
controlling case.
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Under Santobello, we are not concerned with whether the district court was
influenced by the government’s recommendation (or lack thereof); instead, our
focus is on “the interests of justice and appropriate recognition of the duties of the
prosecution in relation to promises made in the negotiation of pleas of guilty.” Id.,
92 S. Ct. at 499. The holding from and principles in Santobello are premised on
the nature of the plea bargaining process.
As we have frequently noted in applying these principles, “the AUSA, not
the court, violated the plea agreement; the sentencing judge’s acts are not
important to this issue.” United States v. Johnson, 132 F.3d 628, 630 (11th Cir.
1998) (per curiam); see Tobon-Hernandez, 845 F.2d at 280 (“[W]e 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.”); accord United States v.
VanDam, 493 F.3d 1194, 1204 (10th Cir. 2007); United States v. Clark, 55 F.3d 9,
13 (1st Cir. 1995) (“[E]ven if, as in this case, the sentencing judge indicates that
the prosecutor’s breach had no effect on the defendant’s sentence, the defendant is
still entitled to a remedy.”). This makes sense; entering into a plea agreement
forms a contract between the defendant and the government, and it is the
defendant’s rights that are violated when the government breaks its promises in the
agreement. By agreeing to plead guilty pursuant to a plea agreement, the
defendant waives his rights “not in exchange for the actual sentence or impact on
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the judge, but for the prosecutor’s statements in court.” Correale v. United States,
479 F.2d 944, 949 (1st Cir. 1973) (emphasis added).
Neither Hunter nor the government could control how the district court
sentenced Hunter. That is, Hunter could not bargain for, and thus was never
entitled to, the acceptance-of-responsibility reduction itself. Hunter bargained for
the government to stand before the district court and affirmatively recommend the
reduction on his behalf. What Hunter received instead was the government
objecting to the reduction in the district court and arguing against the suggestion
that Hunter was entitled to it. Any actions by the district court thereafter are
irrelevant to the breach and the remedy; the court can neither moot nor cure the
government’s breach.5
Thus, applying Santobello, we reject the government’s argument that,
because the district court applied the acceptance-of-responsibility reduction, no
remedy for the government’s breach is warranted. Hunter bargained for—and is
entitled to—the government’s recommendation of the reduction on his behalf.
That is what he must receive when he is resentenced. Accordingly, we remand for
5
Although the district court cannot cure the government’s breach of a plea agreement,
the Supreme Court has opined that the government may be able to do so. See Puckett, 556 U.S.
at 140, 129 S. Ct. at 1432 (commenting that the government may be able to cure a breach if it
“simply forgot its commitment and is willing to adhere to the [plea] agreement”); see also United
States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010) (noting that the government might be
able to cure a breach if it immediately and unequivocally adhered to the plea agreement upon
objection). Here, the government failed to brief and thus waived any argument that it acted to
somehow cure the breach. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
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resentencing before a different district court judge. We do so, not due to lack of
trust in the original sentencing judge’s capacity for fairness, but to reestablish the
trust between the defendant and the government that is essential to the plea
bargaining process.
III. CONCLUSION
“Because plea bargaining requires defendants to waive fundamental
constitutional rights, we hold prosecutors engaging in plea bargaining to the most
meticulous standards of both promise and performance.” United States v. Riggs,
287 F.3d 221, 224 (1st Cir. 2002) (internal quotation marks omitted). In addition,
the plea bargaining process “must be attended by safeguards to insure the
defendant what is reasonably due in the circumstances.” Santobello, 404 U.S. at
262–63, 92 S. Ct. at 499. Such requisite standards and safeguards were not met in
the proceedings below. We find that the government breached its plea agreement
with Hunter, and we reverse and remand for resentencing consistent with this
opinion.6
REVERSED and REMANDED.
6
Given that the breach of the plea agreement requires vacatur of Hunter’s sentence,
Hunter’s additional challenge to the procedural reasonableness of his sentence is moot.
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