United States v. Galindo ( 1998 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-10238
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOE PAUL GALINDO,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(5:96-CR-61-C-1)
February 23, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and DEMOSS, Circuit
Judges.
DEMOSS, Circuit Judge:*
A federal grand jury indicted Joe Paul Galindo on counts of
conspiracy, possession of a firearm with an obliterated serial
number, possession of cocaine with intent to distribute, and money
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
laundering. In a written plea agreement, Galindo agreed to plead
guilty to all charges except conspiracy in exchange for dismissal
of the conspiracy charge and the prosecution’s agreement to request
a sentence reduction for acceptance of responsibility. The
presentence report subsequently prepared for Galindo recommended an
upward adjustment for obstruction of justice. It further
recommended against a downward adjustment for acceptance of
responsibility because the commentary to the United States
Sentencing Guidelines advises that such a reduction is ordinarily
inconsistent with an increase for obstruction of justice. The
prosecution endorsed the presentence report and thereby failed to
request a reduction in Galindo’s sentence. As a result of this
alleged breach of the plea agreement, Galindo moved to retract his
guilty plea. The district court denied Galindo’s motion, and
instead sought to remedy the situation by allowing the government
to withdraw its earlier adoption of the presentence report. The
court then sentenced Galindo, allowing a two-level reduction for
acceptance of responsibility and imposing a sentence of
imprisonment at the high end of the range prescribed by the
guidelines. Galindo appealed the sentence. We vacate the sentence
imposed by the district court and remand with instructions.
This Court reviews de novo a defendant’s claim that his plea
agreement was breached. See United States v. Laday, 56 F.3d 24,
25-26 (5th Cir. 1995). A plea agreement has been breached if the
-2-
conduct of the prosecutors is inconsistent with the defendant’s
reasonable understanding of the plea agreement. See United States
v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993). In light of the
government’s ready endorsement of a presentence report which
embodied recommendations inconsistent with the government’s promise
to recommend adjustment for acceptance of responsibility, it is
plain that there was indeed a breach of the plea agreement.
The government’s agreement that the acceptance-of-
responsibility adjustment should apply was part of the inducement
for Galindo to plead guilty, and it must therefore be fulfilled.
See Santobello v. New York, 404 U.S. 257, 262 (1971). Once the
government breached the plea agreement, the district court had
limited options. The two possible remedies available to remedy the
breach of a plea agreement are: (1) specific performance of the
agreement, accomplished by resentencing before another judge; or
(2) allowing the defendant to withdraw the guilty plea. See id. at
263. The course taken by the district court did not remedy the
breach, and the aftermath is not susceptible to harmless-error
analysis. See Valencia, 985 F.2d at 761.
Because the district court failed to provide Galindo either of
the two permissible remedies for the government’s breach of the
plea agreement, we vacate Galindo’s sentence and remand the case
for further proceedings. The district court is instructed that,
consistent with Santobello, it shall either transfer this case to
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another judge for resentencing or permit Galindo to withdraw his
guilty plea.
VACATED and REMANDED WITH INSTRUCTIONS.
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