United States v. Joseph Benchimol , 738 F.2d 1001 ( 1984 )

FERGUSON, Circuit Judge:

Joseph Benchimol appeals the denial of his motion brought under Fed.R.Crim.P. 32(d) and 28 U.S.C. § 2255 to withdraw his guilty plea of mail fraud or in the alternative to vacate his sentence and be resentenced to time served. We hold that the government’s failure to state its recommendation clearly and to express the justification for the sentence it had agreed to recommend constituted a breach of its duty under the plea agreement.

FACTS

Joseph Benchimol mailed applications to obtain credit cards using false names and false information. He then purchased merchandise using the credit cards, but failed to make payments. In 1976, the United States Postal Service issued a complaint. Benchimol was charged with one count of violating 18 U.S.C. § 1341 (mail fraud). Benchimol agreed to plead guilty. The government concedes that in exchange for the guilty plea it promised to recommend probation with restitution. However, at the sentencing hearing, the presentence report incorrectly stated that the government would stand silent. Benchimol’s counsel informed the court that the government instead recommended probation with restitution. The Assistant United States Attorney then stated: “That is an accurate representation.”

DISCUSSION

A postsentencing motion to withdraw a guilty plea is directed to the discretion of the trial court, and may be granted only to correct manifest injustice. Fed.R.Crim.P. 32(d); Pinedo v. United States, 347 F.2d 142, 147 (9th Cir.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966). The district court’s discretion is guided by the rule announced in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that when a guilty plea “rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499.

Here, it is undisputed that the government agreed to recommend probation with restitution. If the government was not fully convinced that the recommendation was justified, it should not have entered into the plea agreement. Having done so, the government owed a duty to state its recommendation clearly to the sentencing judge and to express the justification for it. Benchimol had every right to expect this in exchange for his plea of guilty. A perfunctory statement of the recommendation can easily leave the impression that the government is unconvinced that the recommendation is appropriate or even that it tacitly disfavors the recommendation. Here the government made less than a perfunctory recommendation to the sentencing judge; it made a single remark at the sentencing hearing agreeing with Benchimol’s counsel’s correction of the presentence report. Even this remark was ambiguous. Benchimol’s counsel’s statement that the government recommended probation with restitution could have been interpreted as a statement of past intent of the government. Moreover, the introduction of the erroneous presentence report stating that the government would stand silent enhances the impression that the government had withdrawn from its earlier support of probation with restitution. The government made no effort to explain its reasons for agreeing to recommend a lenient sentence but rather left an impression with the court of less-than-enthusiastic support for leniency.

We hold that when the government undertakes to recommend a sentence pursuant to a plea bargain, it has the duty to state its recommendation clearly to the sentencing judge and to express the justification for it. The government’s failure to honor its promise under a plea bargain entitles a defendant to relief when he has relied on that promise. In so ruling, we adopt the position taken by the other circuits which have considered the issue.

In United States v. Grandinetti, 564 F.2d 723 (5th Cir.1977), the government agreed to recommend a five year sentence on a probation violation charge to run concurrently with sentences recommended on other charges. At the probation revocation hearing, a new attorney represented the government. Rather than actively advocating the government’s agreed position on sentencing, that attorney expressed his personal reservations about the terms of the agreement. On appeal, the court remanded for resentencing, holding that the defendant did not receive the benefit of his bargain — a forceful and intelligent recom-. mendation for concurrent sentences. Id. at 727. The court explained that

It can not be seriously contended that in entering this plea agreement, the defendant did not have every right to expect that in exchange for his guilty plea the government would strongly recommend the agreed to sentence. This expectation was certainly an “inducement or consideration” for the plea, and, thus, if the agreement was not fulfilled, the defendant would be entitled to relief. This is so regardless of whether the failure of the government to strongly advocate the agreement had any effect on the sentencing judge. Judge Roettger in this case articulated very persuasive reasons why he was not following the plea agreement, but the sentence must nevertheless be vacated if the agreement was not kept because the defendant offers his plea not in exchange for the actual sentence or impact on the judge, but for the prosecutor’s statements in court. If these statements are not adequate (as opposed to successful), then the agreement has not been fulfilled____

Id. at 726 (citations omitted).

Likewise, on similar facts, the Fourth Circuit in United States v. Brown, 500 F.2d 375 (4th Cir.1974), reversed and remanded for resentencing on the ground that the government had failed to keep its bargain. The court stated:

We have no occasion to consider the propriety of sentence, or recommendation as to sentence, as an element of a plea bargain, but it is manifest that the consideration which induced defendant’s guilty plea was not simply the prospect of a formal recitation of a possible sentence, but rather the promise that an Assistant United States Attorney would make a recommendation on sentencing. This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor for the United States.

Undoubtedly the district court had this understanding of the role of an Assistant United States Attorney at sentencing when he sought the prosecutor’s recommendation. Certainly he was entirely correct in inquiring into the basis of the recommendation to aid him in the exercise of his sentencing discretion. Whether the prosecutor’s halfheartedness in presenting the recommendation was a factor in the district court’s imposing a sentence more severe than that “recommended” is a matter into which we need not inquire.

Id. at 377.

The appropriate remedy for the government’s breach of a plea agreement is within the discretion of the court depending on the particular circumstances of each case. Santobello, 404 U.S. at 263, 92 S.Ct. at 499; United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983). We remand for resentencing, at which time the government will comply with its plea bargain by clearly stating its recommendation of probation with restitution and the reasons why it believes that sentence is appropriate. Benchimol is entitled to be resentenced before a different judge. Santobello, 404 U.S. at 263, 92 S.Ct. at 499.

REVERSED AND REMANDED.