United States v. Derek Marcell Jeter , 414 F. App'x 248 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10273 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:09-cr-00022-WTM-GRS-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DEREK MARCELL JETER,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 14, 2011)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Derek Marcell Jeter appeals his 46-month above-guideline sentence imposed
following his guilty plea to one count of bank fraud, in violation of 18 U.S.C. § 1344.
On appeal, Jeter argues that the government breached the plea agreement by
recommending an above-guideline sentence, which requires us to remand for
re-sentencing. Because he knowingly and voluntarily entered his guilty plea, Jeter
requests that we order re-sentencing before a different district court judge. After
careful review, we vacate and remand.
We review de novo whether the government breached a plea agreement.
United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). When a plea rests
in any significant portion on the government’s promise or agreement, so that it
becomes part of the inducement or consideration, such promise must be fulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971).
We have held that whether the district court considered or was influenced by
the government’s position on the sentencing issue is not relevant. United States v.
Johnson, 132 F.3d 628, 630 (11th Cir. 1998). When analyzing an alleged violation
of a plea agreement, 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.” Id. (quotation and emphasis omitted). We have held that “[a]dvocacy
of a position requiring a greater sentence is flatly inconsistent with recommendation
of a lesser sentence.” United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). In
Taylor, the government conceded that its support of the PSI’s position on related
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conduct was incompatible with the plea agreement’s terms, but it argued that it cured
the breach by recommending the appropriate sentence at the sentencing hearing. Id.
at 371. We disagreed and held that the government’s recommendation, “which
merely paid ‘lip service’ to the agreement, [was] insufficient to rectify the breach
committed when the government advocated a position requiring a longer sentence
than it had agreed to recommend.” Id.When the government’s breach of an agreement has been established, we may
either order specific performance of the agreement by means of re-sentencing before
a different judge or allow a withdrawal of the plea. Johnson, 132 F.3d at 631. We
have not favored withdrawal of the guilty plea where, as here, no question exists that
the plea was knowingly and voluntarily entered. Id.In the plea agreement and at Jeter’s Rule 11 hearing, the government agreed
that it would recommend a within-guideline sentence. But in a sentencing
memorandum and at sentencing, the government advocated a 51-month
above-guideline sentence. By recommending an above-guideline sentence, the
government clearly violated the plea agreement. Further, as it concedes, the
government’s apology and subsequent within-guideline recommendation failed to
cure the breach. See Taylor, 77 F.3d at 371. Moreover, the district court did not cure
the government’s breach when it stated that it did not rely upon the government’s
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initial recommendation in imposing Jeter’s sentence. See Santobello, 404 U.S. at 262(remanding case even though the Court had “no reason to doubt” the sentencing
judge’s statement that “the prosecutor’s recommendation did not influence him”).
Finally, as in Johnson, 132 F.3d at 631, Jeter does not seek to withdraw his knowing
and voluntary guilty plea. Therefore, as the government agrees, our precedent
compels us to vacate Jeter’s sentence and order that he be resentenced by a different
district court judge.
VACATED AND REMANDED.
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