                   Rehearing granted, June 16, 2009



                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4568


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

YOLANDA CRAWLEY,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:07-cr-00066-JFM-2)


Submitted:    December 24, 2008             Decided:   March 30, 2009


Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Jack B. Rubin, Flynn M. Owens, RUBIN & OWENS, P.A., Baltimore,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Kwame J. Manley, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Yolanda      Crawley        pled       guilty    to    one     count    of    wire

fraud, 18 U.S.C.A. § 1343 (West Supp. 2008).                          The district court

imposed      a   sentence        of     twenty-four          months       imprisonment     and

ordered Crawley to make restitution in the amount of $200,000.

Crawley      appeals      the     judgment,         arguing        that     the    government

breached the plea agreement by not recommending a sentence at

the low end of the advisory guideline range as it was obligated

to do under the terms of the plea agreement.                          We agree that the

government       failed    to     fulfill       its    obligation          under    the    plea

agreement.        We     therefore       vacate      the     sentence      imposed    by    the

district court and remand for resentencing before a different

judge.

             Crawley      and     the    government          stipulated      that    she    had

knowingly and willfully worked with her son, Sean Green, and two

other    people     to     submit       mortgage       applications          and    documents

containing false information about her income and employment so

as to obtain loans to buy two properties in Florida, one worth

over    $1   million,      the    other     worth       $500,000.           The    government

stipulated that it would not oppose a two-level adjustment for

acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1 (2007), and that Crawley was eligible for an additional




                                                2
one-level reduction under § 3E1.1. 1                      The government promised in

Paragraph 13 of the agreement that it would “make a sentencing

recommendation          within     the    low       end    of    the   guideline      range

determined by the Court,” but the agreement also provided that,

if    Crawley     breached       the     agreement,        the   government       would    be

released from its obligations under the agreement and free to

recommend any sentence that it considered appropriate.

                The plea agreement provided that Crawley would breach

the agreement if she knowingly withheld information; gave false,

incomplete        or    misleading        testimony        or    information;       falsely

minimized the involvement of any person, including herself; “or

failed     to    accept       personal    responsibility         for   her       conduct   by

failing to acknowledge her guilt to the probation officer who

prepares the Presentence Report.”                     When the presentence report

was   prepared,         the    probation    officer         recommended      a    two-level

adjustment        for     acceptance       of       responsibility,       stating      that

Crawley had admitted her involvement in the offense and accepted

responsibility for her actions, and noting that the government

had agreed to recommend an additional one-level reduction.                             With

       1
       The district court may give a two-level reduction in
offense level if it determines that the defendant has accepted
responsibility for her offense.      USSG § 3E1.1(a).    If the
defendant qualifies for a reduction under subsection (a) and the
government moves for an additional one-level reduction based on
the defendant’s timely notice of her intent to plead guilty, the
district court should grant it. USSG § 3E1.1(b).



                                                3
the     three-level         adjustment      under        § 3E1.1,        the    recommended

offense level was 14.              Crawley was in criminal history category

I.    The recommended advisory guideline range was 15-21 months.

                  Before    sentencing,       and       before      Crawley      filed      her

sentencing memorandum with the district court, the government

filed        a   sentencing      memorandum       in    which      it   agreed      with    the

guideline calculation in the presentence report, but stated that

it had given notice to Crawley that the district court might

depart upward based on her criminal conduct.                                 The government

also noted that, “[t]he Court has expressed concern about the

nature of these crimes and their facilitation of drug-related

activities.” 2          The government asserted that Crawley’s son, Sean

Green, was a drug dealer, and that Crawley believed he was a

drug dealer when she committed the offense because “Crawley knew

that        Green   had    no   legitimate      income       and    enjoyed     a   high-end

lifestyle of expensive homes, expensive cars, and hundred[s] of

thousands         of   dollars    in   cash.”          The   government        alleged     that

Crawley          “personally     received    over       $240,000        in   cash    from   an

individual [Green] she believed was involved in drug dealing.

She wired payments, wrote checks, and otherwise facilitated the




        2
       The court expressed this concern when sentencing Crawley’s
co-defendants.



                                              4
laundering of much of these funds.”                          The government concluded

with the following recommendation:

      In short, the Government believes that a significant
      sentence of jail time is appropriate.    The Court has
      already expressed concerns as to why Crawley and
      others in this case were not charged in a drug
      conspiracy.   As always, the Court can incorporate its
      evaluation of Crawley’s criminal conduct in imposing
      an upward departure under the advisory guidelines
      and/or an upward variance under Section 3553 factors.
      The   Government   believes   a significant   term  of
      incarceration is appropriate.

            Crawley      responded           by       asserting   in    her    own    written

memorandum     that    she     had      no    direct        knowledge    that    Green    was

involved with drugs, and that she believed her son was proposing

a legitimate business venture when he asked her to help him buy

real estate using her good credit.                       She stated that she believed

he had the money to make the mortgage payments legitimately.

She   denied    that     she      had    knowingly           helped     to    launder    drug

proceeds.

            On the day before sentencing, the government submitted

a letter to the court disputing Crawley’s assertions that she

did not know Green was involved with drugs in connection with

the   mortgage     fraud       and      that          she   believed     he     had     enough

legitimate income to make the mortgage payments.                             The government

represented      that,       in    her        post-arrest         interview      with      law

enforcement officers, Crawley said she suspected that Green was

dealing drugs, and explained why she did.                         The government stated


                                                  5
that it would not move for the additional one-level reduction

for acceptance of responsibility, and gave notice that it would

recommend a sentence of thirty months imprisonment.

            At     the     sentencing           hearing,         the    court       noted       that

Crawley had not been charged with a drug crime, but expressed

concern    that     she        was   denying          any       knowledge     of     her    son’s

involvement with drug dealing, despite her statements to the

agents after her arrest.                 The government asked for a sentence of

thirty months, stating that it was released from its obligations

under    the   plea      agreement         because          Crawley     had     breached         the

agreement.       The court determined that Crawley had not accepted

responsibility       and       had   tried       to     conceal        the    extent       of    her

knowledge about the mortgage fraud.                              Nevertheless, the court

gave     Crawley     the       two-level         adjustment            for    acceptance          of

responsibility recommended in the presentence report.                                 Crawley’s

total offense level was thus 15 and her guideline range was

18-24    months.         The    court      imposed          a   sentence      of    twenty-four

months.

            “It     is      settled            that    a        defendant       alleging         the

Government’s       breach       of   a    plea       agreement      bears     the    burden       of

establishing that breach by a preponderance of the evidence.”

United    States    v.     Snow,         234    F.3d    187,      189    (4th      Cir.     2000).

However, when the defendant fails to raise the issue in the

district court, we review the issue for plain error.                                        United

                                                 6
States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th Cir. 1997)

(citing     United       States    v.    Fant,       974   F.2d    559,       565    (4th    Cir.

1992)).          The     appellant      must     show      not    only     that       the    plea

agreement        was    breached,       but    also     that      “the    breach       was    ‘so

obvious and substantial that failure to notice and correct it

affect[ed] the fairness, integrity or public reputation of the

judicial proceedings.’”                McQueen, 108 F.3d at 66 & n.4 (quoting

Fant, 974 F.2d at 565).                Crawley did not assert in the district

court     that         the    government       breached          her      plea      agreement.

Consequently, her claim is reviewed for plain error.

              “When a plea agreement 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

(1971).      As this court has stated, the interpretation of a plea

agreement        is    rooted     in    contract      law    and       each    party        should

receive the benefit of its bargain.                        United States v. Peglera,

33   F.3d    412,       413    (4th    Cir.    1994)       (citing       United      States      v.

Ringling, 988 F.2d 504, 506 (4th Cir. 1993) (internal quotations

omitted)).             However,    because       a    defendant’s         fundamental         and

constitutional rights are implicated when he is induced to plead

guilty by reason of a plea agreement, this court analyzes a

breach      of    that       agreement    with       greater      scrutiny          than    in    a

commercial contract.            See McQueen, 108 F.3d at 66.

                                               7
         Here, it appears that the government first breached

the plea agreement in its memorandum of April 1, 2008, when it

advocated a “significant sentence of jail time,” and suggested

that the court might wish to depart upward, without mentioning

that it had agreed to recommend a sentence at the low end of the

guideline range.   At sentencing, the government again failed to

recommend a sentence at the low end of the guideline range as it

had promised to do.

          The   government   argues   that    Crawley   breached   the

agreement by failing to accept responsibility and minimizing her

role in the criminal scheme, thus releasing the government from

its obligations under the agreement.         However, the government

cannot unilaterally declare itself released from its obligations

under a plea agreement because the defendant has breached the

agreement.   Only after a hearing and a judicial determination

that the defendant breached the agreement may the government be

released from the promises it made.      United States v. Guzman,

318 F.3d 1191, 1196 (10th Cir. 2003); United States v. Frazier,

213 F.3d 409, 419 (7th Cir. 2000); United States v. Simmons,

537 F.2d 1260, 1261-62 (4th Cir. 1976).        The government filed

its sentencing memorandum several weeks before Crawley filed her

own memorandum, apparently in reaction to comments made by the

judge in a related proceeding rather than anything Crawley had



                                 8
done or said at that point. 3              The government never mentioned its

obligation to recommend a sentence at the low end of the range,

either      in    its     written    submissions    to    the    court    or    at   the

sentencing hearing.             While the government stated at sentencing

that Crawley had breached the agreement, and the court appeared

to   accept        this     explanation     for    the    government’s         sentence

recommendation, the court made no determination that Crawley had

in   fact    breached       the     agreement,    the    basis   for     the    alleged

breach, or when the breach might have occurred.

                 Although it is not clear that the district court would

have imposed a different sentence if the government had kept its

promise, Crawley did not receive the benefit of her bargain.

Therefore, we are satisfied that she was prejudiced and that the

government’s          breach    constitutes      plain   error    that    should     be

addressed        on   appeal.       “[A]   government    that    lives    up    to   its

commitments is the essence of liberty under law, [and] the harm

generated by allowing the government to forego its plea bargain




      3
       Co-defendant David Lincoln’s sentencing hearing began on
March 20, 2008, and concluded on April 2, 2008.     Co-defendant
Rachel Donegan was sentenced on March 18, 2008. The government
filed   its   sentencing  memorandum  in   Crawley’s   case   on
April 1, 2008. Crawley filed her sentencing memorandum on April
23, 2008, and was sentenced on April 24, 2008.   The government
replied to her memorandum in a letter to the court filed
April 24, 2008.



                                            9
obligations is one which cannot be tolerated.”            Peglera, 33 F.3d

at 414.

          Accordingly,   we   vacate     the   judgment   and    remand   the

case for resentencing before a different judge.                  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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