United States v. Leroy Roebuck , 404 F. App'x 627 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4163
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UNITED STATES OF AMERICA
v.
LEROY ROEBUCK,
Appellant
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On Appeal from the District Court
of the United States Virgin Islands
District Court No. 3-09-cr-00010-001
District Judge: The Honorable Curtis V. Gomez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 16, 2010
Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed: December 20, 2010)
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OPINION
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SMITH, Circuit Judge.
Leroy Roebuck pled guilty to possessing marijuana with intent to distribute on
July 15, 2009. Under the terms of the plea agreement, the United States agreed to
dismiss part of the indictment, to file a U.S.S.G. § 5K1.1 motion for downward departure
at sentencing, and to specifically recommend a sentence of probation. At the sentencing
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hearing, however, the prosecutor did not recommend probation, and instead voiced a
recommendation of zero to six months’ imprisonment. The District Court imposed a
sentence of six months’ imprisonment, whereupon defense counsel reminded the
prosecutor of his commitment to recommend probation. The parties and the court
conferred at a sidebar, where the government acknowledged that it had inadvertently
reneged on part of its share of the plea bargain. The court did not alter its sentence, but
instead instructed the parties to file appropriate motions. Both the government and the
defendant complied, filing separate motions for a stay of the sentence. The court denied
both motions on October 13, 2009. The government filed a motion for resentencing two
days later, but the court entered judgment imposing the six-month sentence that same
day. The defendant timely appealed his sentence, asking that the case be remanded to the
District Court for resentencing. To its credit, the government acknowledges its error and
supports the defendant’s request that the plea bargain be enforced.
Whether the government has violated the terms of a plea agreement is a question
of law to be reviewed de novo; if a violation is found the case must be remanded either
for resentencing or for withdrawal of the guilty plea. United States v. Moscahlaidis, 868
F.2d 1357, 1360 (3d Cir. 1989) (citing Santobello v. New York, 404 U.S. 257 (1971);
United States v. Miller, 565 F.2d 1273 (3d Cir. 1977); United States v. Crusco, 536 F.2d
21 (3d Cir. 1976)). We agree with the parties that the government violated the terms of
the plea agreement by failing to recommend a sentence of probation. The prosecution
made a commitment and admits failing to live up to it. The attempted correction at the
sidebar conference came too late to affect the District Court’s decision and was not an
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adequate substitute for specific performance. Accordingly, vacatur of the sentence is
warranted.
As to remedy, the defendant does not ask to withdraw his plea, preferring instead
to be resentenced in accordance with the terms of his agreement. We agree that this is the
appropriate resolution of the case, and will therefore remand with instructions that the
defendant be resentenced by a different judge.
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