                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 92-7417



                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                              VERSUS


                    FRANCISCO LOZANO VALENCIA,

                                                Defendant-Appellant.




          Appeal from the United States District Court
               For the Southern District of Texas
                      (Februaryh 24, 1993)
Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DEMOSS, Circuit Judge:

                                I.

     On February 27, 1991, Francisco Lonzano Valencia pleaded
guilty, pursuant to a plea agreement, to aiding and abetting the

possession, with intent to distribute, in excess of five kilograms

of cocaine.    In exchange for Valencia's plea, the government

agreed, among other things, to stipulate that Valencia accepted

responsibility for his conduct in accordance with USSG § 3E1.1.

This would entitle Valencia to a two-level reduction in offense

level.

     The Presentence Report (PSR) ordered by the Trial Court

concluded that Valencia was not entitled to the two-level reduction
in the offense level for acceptance of responsibility for the

offense because Valencia did not accept responsibility for his

relevant conduct.           Valencia objected to the PSR, among other

things, specifically on the ground that he was not entitled to that

reduction.

      At   the    initial    sentencing         hearing   on   May   15,   1991,   the

district       court   granted     Valencia        a   one-level     reduction     for

cooperation with the government and a one-level reduction for

acceptance of responsibility, resulting in a sentence of 120 months

plus five years of supervised release and a $50 special assessment.

Valencia appealed, challenging the propriety of his sentence.

      On March 18, 1992, this Court vacated that sentence and

remanded for resentencing, finding that a district court may not

award      a    one-level       reduction        for   partial       acceptance     of

responsibility.        We held that the Trial Court must either give a

two-point reduction or it may not reduce the sentence at all.

United States v. Valencia, 957 F.2d 153 (5th Cir. 1992).

      Valencia was resentenced on May 22, 1992.                 The district court

denied Valencia any credit for acceptance of responsibility at that

proceeding but did grant him a two-point reduction for substantial

assistance, resulting in a sentence of 108 months incarceration, a

five-year term of supervised release, and a $50 special assessment.

The   government       argued    at   the       resentencing    that   despite     its

stipulation to the contrary, Valencia "clearly . . . should not be

entitled to any credit for acceptance of responsibility."




                                            2
      Valencia again appeals, claiming that the government breached

the plea agreement when it stated that Valencia did not deserve a

two-level reduction for acceptance of responsibility.

      We VACATE the sentence and REMAND for resentencing by a

different judge.

                               II.   DISCUSSION

      At the initial sentencing on May 15, 1991, the probation

officer submitted the PSR that concluded that Valencia had denied

any   involvement   in   the    offense    to    which   he   pleaded   guilty.

Valencia's original counsel filed objections to the PSR in an

attempt   to   clarify     Valencia's       apparent      non-acceptance     of

responsibility.     Counsel explained that no attorney was present

when Valencia, a Colombian National who did not speak English, was

debriefed by the probation officer responsible for compiling the

PSR and that Valencia had been told to refrain from speaking to

anyone without his counsel present, and thus, did not talk openly

with the probation officer.

      The court noted Valencia's objection to the PSR and stated

that he was "about halfway convinced" as to Valencia's partici-

pation in accepting responsibility.             He thus gave him a one-level

reduction for that category.

      At resentencing on May 22, 1992, Valencia's attorney claimed

that his client was remorseful for his conduct, fully accepted

responsibility, and had he been familiar with the debriefing, would




                                       3
have been more forthcoming in his statements.1            Following defense

counsel's argument, the following exchange took place in relevant

part between the trial judge and the prosecutor, Mr. Dies:

     THE COURT:   What is the Government's thoughts in that
     regard?

     MR. DIES: Your Honor, what kind of frightens me a little
     bit is counsel's assertion that today the defendant is
     more remorseful and accepts more his responsibility than
     he did at the initial plea of guilty. Is that to say,
     then, your Honor, logically extending the argument, that
     if we somehow mess up today and it gets reversed or
     remanded, then we come back four months later, if the
     defendant is even more remorseful in four months from
     now, he gets more credit?

          My position is, Your Honor, that although we may
     have at the outset agreed by a plea bargaining that this
     defendant accepted responsibility for his conduct, he
     failed to demonstrate that to you on the record with his
     debriefing and with the written statement, and clearly,
     Your Honor, he should not be entitled to any credit for
     acceptance of responsibility. It was incumbent upon the
     defendant, not the lawyers and their skills, to show the
     Court acceptance of responsibility. I am of the opinion,
     Your Honor, from the facts today and the facts at the
     entry of the plea of guilty, that the defendant by his
     assistance to authorities, by his debriefs, played a
     substantial role in the resolution of the case over all
     and is entitled to a reduction that you see fit for
     substantial assistance, but nothing because he hasn't
     demonstrated to you, Your Honor, a true acceptance of
     responsibility. (emphasis added).

     Defense counsel immediately objected that the government had

breached the plea agreement with this statement and demanded

specific performance of the plea agreement.

     The   district   court   ruled       on   the   objection   and   stated:

"Specifically, the court notes for the record its perception that


     1
      Valencia's retained attorney withdrew as his counsel after
the initial sentencing and the Federal Public Defender was
appointed to perfect Valencia's appeal.

                                      4
it respectfully requested a response from Mr. Dies earlier with

regard to this issue.   Mr. Dies was therefore duty bound to make

some offering to the court.   The court does not characterize that

as a breach of the agreement that induced this defendant to plead

guilty in this case for any purpose."

     The government relies upon United States v. Hand, 913 F.2d 854

(10th Cir. 1990) to support its contention that the government need

not stand mute in the face of incorrect or misleading testimony.

It points out that the Hand court held that the prosecutor, who had

agreed to recommend that the defendant receive a reduction in

sentence for having a minor role in the offense, had a right to

cross examine the defendant in light of incorrect or misleading

testimony offered to the trial court.

     Noting the court's ruling on Valencia's objection to the

prosecutor's comments in question, the government now argues that

no breach occurred because the prosecutor was merely correcting

inaccurate factual representations and responding to an inquiry by

the court.   The government also argues that because the district

court found that the government did not breach the plea agreement

the finding must be reviewed under the clearly erroneous standard.

Even if a breach occurred, the government contends the breach

constituted harmless error because the prosecutor's argument did

not influence the judge's decision and therefore Valencia would end

up in the same position.

     Whether the government's conduct violates the terms of the

plea agreement is a question of law.    United States v. Badaracco,


                                 5
954 F.2d 928 (3rd Cir. 1992).           A breach of a plea agreement

constitutes plain error and our review is de novo.       United States

v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir. 1992).

     The principles governing the government's obligation to honor

the terms of a plea agreement are well-settled.       If a guilty plea

is entered as part of a plea agreement, the government must

strictly adhere to the terms and conditions of its promises.

United States v. Kerdachi, 756 F.2d 349, 351-52 (5th Cir. 1985).

United States v. Badaracco, 954 F.2d 928.          Furthermore, 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."

Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed.

2d 427 (1971).     In determining whether the terms of a plea

agreement have been violated, the court must determine whether the

government's conduct is consistent with the defendant's reasonable

understanding of the agreement.        United States v. Huddleston, 929

F.2d 1030, 1032 (5th Cir. 1991).       Furthermore, if it is determined

that a plea agreement has been breached, "specific performance [of

the agreement] is called for, [and] Appellant must be sentenced by

a different judge."   United States v. Goldfaden, 959 F.2d 1324 at

1329 (citing Santobello, 404 U.S. at 263); see also, United States

v. Badaracco, 954 F.2d 928 at 938-39, 941.

     None of the government's arguments are persuasive.

     We observe first that the government mischaracterizes its

obligation under the plea agreement, which plainly provides that


                                   6
the parties stipulated that Valencia accepted responsibility for

his offense in the following words:

     The United States stipulates that I have accepted
     responsibility for my actions (§ 3E1.1 Sentencing
     Guidelines).

Plea Agreement, 13(c).

     While the government correctly argues that it may correct

factual inaccuracies in the record,                 United States v. Goldfaden,

959 F.2d at 1328; and that post-sentencing remorse should not be

considered by the judge in determining whether to credit the

defendant for acceptance of responsibility, it can not argue that

the other evidence in the case establishes that Valencia was not

entitled to a reduction for acceptance of responsibility.

     "If the stipulation bargained for by [defendant]--and for

which   he    `surrender[ed]      .    .    .    certain   constitutional   rights

including a meaningful restriction of his liberty'--is to mean

anything, it must preclude remarks like the government made here."

United States v. Badaracco, 954 F.2d 928 at 941.

     Furthermore, the government cannot rely on United States v.

Hand, 915 F.2d 854 to justify its behavior at resentencing.                    The

Hand court distinguished that case from cases such as this one

where a prosecutor promised a recommendation and then proceeded to

argue the opposite position.               The prosecutor in Hand presented no

direct evidence that the defendant played more than a minor role

nor did he characterize the evidence elicited on cross-examination,

nor argue the effect of the evidence to the sentencing judge.

     Here, the prosecutor did characterize the evidence and did

argue   the   effect   of   the       evidence     to   the   judge.   Here,   the

                                             7
prosecutor argued the opposite position in plain violation of the

language of the plea agreement.

        Finally,       the   government's         argument    that     harmless       error

analysis should be applied here because the judge did not base its

holding upon the government's recommendation fails.

        The     interest     of   justice    and    standards    of     good       faith   in

negotiating plea bargains require reversal where a plea bargain is

breached.         Santobello v. New York,           404 U.S. at 262-63.            A lesser

standard would          permit     the    government     to   make     a    plea    bargain

attractive to a defendant, subsequently violate the agreement and

then argue harmless error, thereby defrauding the defendant.

        Here we find that the comments made by the prosecutor to the

court      in    support     of   the    denial    of   credit   for       acceptance      of

responsibility by Valencia breached the plea agreement between the

parties and therefore constitutes reversible error.

                                   III.     CONCLUSION

        On appeal, Valencia has elected specific performance rather

than withdrawal of his plea as his remedy.

        We VACATE Valencia's sentence and REMAND to the district court

with instruction that it transfer this matter to another judge who

will resentence Valencia in accordance with the requirements of

this opinion.          See Santobello v. New York, 404 U.S. at 263 and

United States v. Goldfaden, 959 F.2d at 1329.                    We intimate no view

as to what determination should be made, on remand, on the issue of

acceptance of responsibility.




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