United States v. McCartney ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLIFFORD THOMAS MCCARTNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-71-7)
Submitted: November 30, 2005 Decided: January 9, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Clifford Thomas McCartney appeals his conviction and
sentence for two counts of bank robbery in violation of 18 U.S.C.
§ 2113(a) (2000). McCartney pled guilty, pursuant to a plea
agreement, in which, in exchange for his plea, the government
agreed to “recommend the low end of the applicable guideline
range.” On appeal, McCartney argues that the government breached
the plea agreement by failing to comply with this term of the
agreement. We agree and therefore vacate McCartney’s sentence and
remand.
At sentencing, McCartney’s counsel argued in support of
a sentence at the low end of the applicable advisory guideline
range or lower. When the court inquired of the government its
position on sentencing, the Assistant United States Attorney
responded: “Just that we’d ask that you stay within the advisory
guideline range, Sir, but I don’t have an opinion as to whether it
should be the low end or the high end at this point.”
After McCartney’s counsel noted that the plea agreement
required the government to recommend a sentence at the low end of
the applicable guideline range, the court stated, “Well, I
understand that and I will consider that [the AUSA] has done so
after your having called this to her attention.” The court
proceeded to sentence McCartney to 115 months, the top of the
advisory guideline range of 92 to 115 months.
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A plea agreement is breached when a government promise
which induces the plea goes unfulfilled. Santobello v. New York,
404 U.S. 257, 262 (1971); United States v. Ringling, 988 F.2d 504,
506 (4th Cir. 1993). By not recommending a sentence at the low end
of the guidelines range, the government did not fulfill its
obligations under the plea agreement. See United States v.
Peglera, 33 F.3d 412, 414 (4th Cir. 1994) (“Given the express
inclusion of [a promise to recommend a lower sentence] in the plea
agreement, there would seem to be little question that the
government’s [failure to do so] constituted a breach.”).
After McCartney’s counsel informed the sentencing court
of the government’s promise in the plea agreement, the court deemed
the recommendation made. This is not sufficient to excuse the
government’s failure to comply with its promise made in the plea
agreement. See id. “[R]esentencing is required under Santobello
regardless of the judge’s awareness of the government's ‘real’
position as indicated in the plea agreement.” Id., citing United
States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990).
Case law requires us to remand this case to a different
district judge for resentencing. See Santobello, 404 U.S. at 263;
Peglera, 33 F.3d at 415. Our decision in no way impugns the
sentencing judge, who competently conducted the proceedings.
We vacate the sentence and remand the case to a different
district judge for resentencing. Upon remand, the district court
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shall resentence McCartney consistent with the requirements of this
opinion. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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