                                                  PUBLISH


             IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT

             _____________________________________

                           No. 95-9377
             _____________________________________

                   D. C. Docket No. CR-495-094-2


UNITED STATES OF AMERICA,
                                         Plaintiff-Appellee,

    versus

GORDON JOHNSON, a.k.a. Gordy,
                                         Defendant-Appellant.


             _____________________________________

                           No. 95-9499
             _____________________________________

                    D. C. Docket No. 4:95-CR-94


UNITED STATES OF AMERICA,
                                         Plaintiff-Appellee,

    versus

DONN BURNS,
                                         Defendant-Appellant.
              _____________________________________

                           No. 95-9509
              _____________________________________

                       D. C. Docket No. 4:95-cr-94


UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

     versus

RICHARD PROCTOR, a.k.a. Ricky,

                                             Defendant-Appellant.



                 ______________________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                _______________________________________
                            (January 6, 1998)




Before EDMONDSON and DUBINA, Circuit Judges, and LIMBAUGH*, Senior
District Judge.


________________

*Honorable Stephen N. Limbaugh, Senior U.S. District Judge for the Eastern
District of Missouri, sitting by designation.

PER CURIAM:

                                    2
      Gordon Johnson, Donn Burns, and Richard

Proctor challenge various trial rulings and

sentencing determinations. We conclude that

two reversible errors occurred as to Proctor’s

sentence: (1) Proctor’s plea agreement was

breached by the government; and (2) Proctor

was improperly denied a third point of reduction

for acceptance of responsibility.     No other

reversible errors exist. So, we vacate Proctor's

sentence,    remand   for   resentencing   with

instructions; and affirm otherwise.



                  Discussion1

  1
   The three defendants raise many arguments
challenging their sentences or convictions.
Proctor argues: (1) breach of plea agreement;
(2) error for not providing a full three-point
reduction in his sentence for acceptance of
responsibility; and (3) error for enhancing his
sentence due to co-conspirator’s weapons
                       3
   In 1995, Richard Proctor (Proctor) was

charged, along with seventeen others, in a

multi-count indictment.      Proctor later entered

into a plea agreement with the government. The

plea   agreement   stated:     "The   government

represents that an amount of marijuana not

greater than 100 pounds should be attributed to

this defendant." The agreement also provided

that   the   government       would   "make    no

recommendation as to sentence."

   Despite the agreement's plain language,

however, the later PSI -- prepared independently


possession.      Burns argues: (1) error for
enhancing his sentence due to obstruction of
justice   and    co-conspirator’s    weapons
possession; (2) error because district court
failed to articulate reasons for his particular
sentence; and (3) error because district court
considered     hearsay   in sentencing     him.
Johnson argues that there was insufficient
evidence to support his conviction.
                       4
by the court’s probation officer -- recommended

that Proctor be held accountable for 1400

pounds of marijuana.            When the sentencing

court inquired into the difference between the

amount in the plea agreement and the amount in

the PSI, the Assistant United States Attorney

(AUSA) explained that another co-conspirator,

Mike Miller (Miller), was not interviewed until the

day after the plea agreement was made and that

Miller's testimony had changed the amount

involved -- in the words of the AUSA during the

sentencing       hearing   --     "substantially   and

drastically." The AUSA also said other things

that   further    undermined       the   agreed-upon

provision in the plea agreement.              Proctor

contends that this conduct -- in effect, arguing

in favor of the probation officer's finding in the

                           5
PSI that Proctor should be held accountable for

1400 pounds of marijuana -- was a breach of the

plea agreement.

   "[W]hen a 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." Santobello v. New York, 92 S.

Ct. 495, 499 (1971). It is not the court's role to

determine if the government made a wise choice

in entering into the plea agreement.      United

States v. Rewis, 969 F.2d 985, 988 (11th Cir.

1992). Instead, the court is only responsible for

ensuring the terms of a plea agreement are

followed. Id.

   Here, the government does not dispute that

the quantity limitation induced Proctor to plead

                        6
guilty.     The    government      advances     two

arguments in response to the claim of breach:

(1)   stipulations or plea agreements between

parties are not binding on the sentencing court

under the Sentencing Guidelines; and (2) the

AUSA was not bolstering the contradictory PSI

report, but instead was simply answering the

judge’s questions, as the AUSA was required to

do as an officer of the court.

      That the sentencing court is not bound by

the parties' agreements or recommendations is

well settled.     But, as Proctor contends, the

AUSA,     not   the   court,   violated   the   plea

agreement; the sentencing judge’s acts are not

important to this issue. See Santobello, 92 S.

Ct. at 499 (remanding case for violation of plea

agreement by prosecutor even though Court

                         7
had no reason to doubt sentencing judge's

statement that prosecutor's recommendation

did not influence sentence).      As we wrote in

United States v. Tobon-Hernandez, 845 F.2d 277,

280 (11th Cir. 1988):

   [The cases the government cites] are
   inapposite, however, because they deal with
   the sentencing court's role. In this case, 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.

(emphasis added). Thus, the government's first

argument is unavailing.

   The government's other argument -- that it

was   merely   answering    the   district   court's

questions, not bolstering the contradictory PSI

-- is also without merit. The pertinent AUSA did

more than just answer the sentencing court's

questions. Briefly stated, the court’s questions

                        8
just invited the AUSA to respond to the PSI’s

conclusion that 1400 pounds of marijuana was,

in fact, involved -- and not 100 pounds as the

government had stipulated with Proctor. This

case is not one in which a prosecutor is subject

to much pointed probing by the district judge,

ultimately prying information from the AUSA

contrary to the plea agreement. In this instance,

the AUSA’s response to the PSI’s variance from

the government stipulation was for the AUSA to

choose to become, in effect, an advocate that

the sentencing court should accept the PSI’s

numbers and not the 100 pounds to which the

government had stipulated.

   Miller was the person whose testimony led

the probation officer to conclude that a large

amount of marijuana was involved in this case:

                       9
many, many more pounds than 100 pounds.

Faced with the PSI, the defense counsel argued

that Miller was unworthy of belief; so, the 100-

pound stipulation (or some weight close to it)

ought to be accepted by the sentencing court.

But the AUSA vouched for Miller’s credibility:

“But I, too, found Mr. Miller to be credible and

believable.”; “There’s no way that Mr. Miller

could have made that up.”; “There’s little reason

to believe that Mr. Miller has dreamed up these

poundage quantities pertaining to Mr. Proctor

out   of   whole   cloth    because   they   are

substantially corroborated by the testimony of

other individuals that Mr. Rasper [the probation

officer] has interviewed.”    There were other

examples.



                       10
      We stress again that these comments --

each of which undercut the stipulation on the

weight of the marijuana -- were not demanded

from an AUSA by a zealous judge. As we read

the    transcript,   the   AUSA         abandoned      the

agreement he made with Proctor and became an

enthusiastic advocate for a “fact” at odds with

the “fact” to which he had stipulated. Proctor’s

plea    agreement       was      breached        by    the

prosecutors. See United States v. Boatner, 966

F.2d    1575,    1579   (11th    Cir.    1992)   (finding

government       breached       plea    agreement      by

bolstering PSI containing recommendation that

defendant be held accountable for greater

quantity    of   drugs     than    stipulated     to    in

agreement).



                           11
     Having established that the government

breached the plea agreement, we must next

consider how to rectify the situation.               Two

remedies are available for the government's

breach      of    a   plea    agreement:       specific

performance of the agreement or withdrawal of

the guilty plea.       Santobello, 92 S. Ct. at 499.

"While the choice of a remedy is within the

discretion       of   the    court   rather   than   the

defendant, [however,] the remedy of withdrawal

of the guilty plea has not been favored in this

circuit."   United States v. Jefferies, 908 F.2d

1520, 1527 (11th Cir. 1990). Specific performance

is particularly appropriate where, as here, no

question exists that the plea was knowingly and

voluntarily entered. Tobon-Hernandez, 845 F.2d

at   281    ("Tobon-Hernandez         knowingly      and

                             12
voluntarily entered his guilty plea. To allow him

to withdraw that plea and proceed to trial would

be unwarranted.     Rather, his voluntary plea

agreement should bind him just as it binds the

government.").

   In this case, we conclude that Proctor's

sentence should be vacated and that he should

be resentenced by a different judge.           We,

however, do not require that the PSI be altered

because it appears that the PSI was based on

information   obtained    independently   of   the

prosecution (the party bound by the plea

agreement). On remand, the sentencing court

can make its own determinations as to the most

appropriate sentence -- being bound by neither

the plea agreement nor the PSI.



                         13
    Proctor also contends that the district court

misapplied        the    sentencing   guidelines      by

granting only a two-level reduction, instead of

three, after it determined that Proctor accepted

responsibility under U.S.S.G. § 3E1.1.           “Once

the district court has determined the defendant

has accepted responsibility, . . . the court’s

application of the guidelines is reviewed de

novo.” United States v. McPhee, 108 F.3d 287,

289 (11th Cir. 1997).      Here, the district court did,

in fact, decide that Proctor was entitled to a

reduction    in    his   offense   level   due   to   his

acceptance of responsibility.         But, the district

court did not grant the full three-level reduction

-- probably because of the conflicting evidence

concerning the quantity of drugs attributable to

Proctor.    The district court, however, did not

                            14
have the benefit of our recent decision in

McPhee, which held that “once a defendant is

awarded a two-level reduction for acceptance of

responsibility, whether or not to grant the one-

level reduction is a matter of determining only

whether       the   defendant      timely    provided

information     and    notified   authorities   of   his

intention to enter a plea of guilty.” Id. at 289-90.



    In this case, “the district court denied the

additional     point    on     improper     grounds”;

resentencing is necessary on this issue as well.

Id. at 290.   Section 3E1.1 will require that the

sentencing court to grant an additional one-

point reduction if it determines that Proctor

accepted responsibility and did so in a timely

way.

                          15
   VACATED    and   REMANDED   in   part;
AFFIRMED in part.




                    16
