
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                For the First Circuit                                                                                      ____________________        No. 95-1351                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              MOISES LUIS VELEZ CARRERO,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. D. Brock Hornby,* U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Jorge E. Rivera-Ortiz on brief for appellant.             _____________________             Guillermo  Gil,  United  States   Attorney,  Nelson  Perez  Sosa,             ______________                               ___________________        Assistant  United States Attorney, and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                                                                      ____________________                                  February 27, 1996                                                                                      ____________________                                    ____________________             *Of the District of Maine, sitting by designation.                    CYR, Circuit  Judge.  Defendant-appellant  Moises Velez                    CYR, Circuit  Judge                         ______________          Carrero  ("Velez) appeals  his  sentence on  the ground  that the          government  breached  its  plea agreement  ("the  Agreement")  by          failing to  recommend that there  be no adjustment pursuant  to            3B1.1 of the United States Sentencing Guidelines.  We agree.                    "Because plea bargaining  requires defendants to  waive          fundamental constitutional  rights, we hold  prosecutors engaging          in  plea bargaining  to `the  most meticulous  standards of  both          promise and performance.'"  United States v. Clark, 55 F.3d 9, 12                                      _____________    _____          (1st  Cir.  1995) (citation  omitted).    In the  Agreement,  the          government  promised "to recommend that no adjustment pursuant to            3B1.1  of the sentencing  guidelines be made."   At sentencing,          however, the government informed the court that it had "agreed to          make no suggestion to the court  as to the role of the  defendant          in  the offense."   What  the government  bargained to do  was to          oppose any    3B1.1 adjustment.  What  it delivered was its  neu-          ______          trality.  This  is no mere terminological distinction.   The quid                                                                       ____          pro quo from the  defendant's point of view in this  case was the          ___ ___          prestige of  the government  and its  potential to  influence the                                                _________          district  court.   We  conclude  that  the  government's  conduct          amounted to non-performance of the Agreement.                    Santobello  v.  New  York, 404  U.S.  257,  262 (1971),                    __________      _________          requires  that the  breach of  a  plea agreement  be remedied  by          either "specific performance  of the  agreement on  the plea,  in          which case petitioner should be resentenced by a different judge,          or .  . . the  opportunity to withdraw the  plea of guilty."   In                                          2          this case,  Velez seeks and we  grant the former  mode of relief.          See United States v. Canada, 960 F.2d 263, 271 (1st Cir. 1992).          ___ _____________    ______                    Accordingly,  we vacate  the sentence  and remand  with                                     ______                    ______          orders that Velez  be resentenced by a different judge.  See Loc.                                                                   ___          R. 27.1.1                                        ____________________               1In light of our decision  to vacate the sentence for breach          of the Agreement, we need not address Velez's contention that the          district court violated 18 U.S.C.    3553(c) by failing to recite          its reasons for the sentence it imposed.                                          3
