                           REVISED - March 22, 2000
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                                  No. 99-40411


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus
ROBERT DANIEL SALING, JR.,
                                                            Defendant-Appellant.


                   Appeal from the United States District Court
                    for the Eastern District of Texas, Sherman

                                February 29, 2000
Before POLITZ, GIBSON,* and HIGGINBOTHAM, Circuit Judges.
POLITZ, Circuit Judge:

       Robert Daniel Saling, Jr. appeals his conviction and sentence on the grounds
that the United States breached their plea agreement.        Concluding that the
government violated the express terms of its agreement with the defendant, we

vacate the conviction and sentence and remand to the district court so that Saling

may withdraw his guilty plea and further proceedings may be had.
                                BACKGROUND

       Pursuant to a written plea agreement, Saling pleaded guilty to knowingly

possessing a firearm while a convicted felon in violation of 18 U.S.C. § 922(g).

   *
   Circuit Judge of the Eighth Circuit, sitting by designation.
Taking into account all relevant factors, including Saling’s prior violent felony
convictions, the Presentence Report computed the sentencing range for the instant

offense to be between 168-210 months. Under 18 U.S.C. § 924(e)(1), however, due

to Saling’s prior felonies, the minimum term of imprisonment for the instant crime
was 180 months, thereby altering the guideline range to 180-210 months. At the

time of sentencing, Saling was serving an undischarged term of imprisonment in

the Texas prison system for three state offenses. Under the Sentencing Guidelines

the instant sentence could be ordered to run concurrently, partially concurrently,
or consecutively to his state sentences.1 The PSI recommended and the district
court imposed a sentence of 195 months imprisonment, to run consecutive to his
state sentences, plus five years supervised release. Saling was ordered to pay a fine

and the statutory assessment.
         The plea agreement expressly provided that the government would not

oppose the federal sentence running concurrent with Saling’s state sentences. The
sentence imposed was to be at the sole discretion of the district court and the
government agreed to make no representations relative to the sentence. In addition,

it was agreed that Saling would not be permitted to withdraw his guilty plea

because of dissatisfaction with his sentence.
         At the sentencing hearing the government was represented by an Assistant

United States Attorney who was not involved in the negotiation of Saling’s plea

agreement or the entry of his guilty plea. After defense counsel informed the court


   1
       U.S.S.G. § 5G1.3(c) (1998).
                                         2
of the details of the plea agreement and urged imposition of a concurrent sentence,
the following colloquy between the AUSA and the court occurred:

       [AUSA]: Your Honor, I don’t disagree with what [defense counsel]
       said about the plea agreement agreeing to concurrent sentences within
       the state system. However, [my colleague] didn’t have the benefit of
       the information that we now have about the Defendant’s behavior
       while he’s been incarcerated at Carswell.2 And it’s my understanding
       that . . . the probation department has made the Court aware of the
       Defendant’s behavior while he’s been incarcerated.

       And I’ll just point out to the Court that that’s consistent with the
       Defendant’s prior behavior while incarcerated in the Bell County jail
       where he was charged with terroristic threat when he apparently
       threatened to kill another inmate within the Bell County jail.

       I just encourage the Court to consider those factors when the Court
       determines whether this should be a concurrent or a consecutive sentence....
       (emphasis added).
       THE COURT: Well, I understand from the information that was
       furnished by the probation officer that the Defendant has been causing
       a good deal of trouble where he’s presently incarcerated and has
       not demonstrated the type of conduct while he’s been incarcerated
       pursuant to this charge that would justify leniency by this Court....
The AUSA also informed the court about Saling’s prior convictions and that

charges had been brought against him for allegedly assaulting a prison guard.

Saling was afforded an opportunity to speak in his defense, after which the court
asked the prosecutor if she had anything further to say. The AUSA added:

       ...And the third things [sic] is he does have a lot of time to serve.
       And if we don’t send a message about these inmates who are serving
       a lot of time, who have nothing to lose, if we don’t send a message to
       them about how they treat the guards who are guarding them, then I
       don’t see how we’re being supportive of those guards.


   2
    Saling was incarcerated at Carswell serving the sentence for one of his state
crimes and pending sentencing in this case.
                                         3
Saling attempted to withdraw his guilty plea during the hearing but was told it was
too late. The court subsequently denied his written motion renewing his request to

withdraw his plea. This appeal followed.

                                        ANALYSIS
               Saling contends that the government breached its plea agreement by

advocating that the sentence imposed for the instant offense run consecutive to his

state sentences. We review de novo whether the government breached its plea

agreement,3 and the facts establishing the breach must be proven by a
preponderance of the evidence.4 It is well settled that “when 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.”5

Additionally, in determining whether a breach has occurred, we must consider
“whether the government’s conduct is consistent with the defendant’s reasonable

understanding of the agreement.”6 If a breach has in fact occurred, the sentence
must be vacated without regard to whether the judge was influenced by the
government’s actions.7


           3
     United States v. Cantu, 185 F.3d 298 (5th Cir. 1999); United States v.
Valencia, 985 F.2d 758 (5th Cir. 1993).
      4
          United States v. Laday, 56 F.3d 24 (5th Cir. 1995).
      5
          Santobello v. New York, 404 U.S. 257 (1971).
      6
          Valencia, 985 F.2d at 761.
  7
   Santobello, 404 U.S. at 262-63; United States v. Grandinetti, 564 F.2d 723 (5th
Cir. 1977).
                                             4
      The prosecutor’s statements to the trial judge blatantly violated the plea
agreement’s express terms. That document makes manifest that part of the

inducement or consideration for Saling’s guilty plea was the government’s promise

not to oppose the imposition of a concurrent sentence.8 The government contends
that no breach occurred because the prosecutor’s statements were merely an

argument for a sentence at the high end of the guideline range rather than for

consecutive sentences. We are neither persuaded nor favorably impressed by this

contention. The above-quoted language is susceptible of only one interpretation,
that is, that the prosecutor was urging in favor of a consecutive sentence, despite
her knowledge of the written agreement and the government’s express promise to
the contrary. The record makes clear that the entire colloquy between the court, the

defendant, and the AUSA was prompted by the government’s objection to defense
counsel’s request that Saling’s federal sentence be made to run concurrent with his

state sentences.
      The government also claims that it was not reasonable for Saling to believe
that the government would withhold from the court pertinent sentencing

information, such as his disruptive behavior while in custody. Again, we are not

persuaded. A prosecutor has the duty as an officer of the court to inform the court
of all factual information relevant to the defendant’s sentence so that a sentence



  8
    Grandinetti, 564 F.2d at 726 (“[T]he defendant offers his plea not in exchange
for the actual sentence or impact on the judge, but for the prosecutor’s [actions] in
court. If these [actions] are not adequate (as opposed to not successful), then the
agreement has not been fulfilled.”) (citations omitted).
                                         5
may be imposed based upon a complete and accurate record.9 This typically is
done by providing the probation officer with information to be included in the PSI

or by relating that information in open court at the sentencing hearing.10 But that

is not what happened in the case at bar. The court à quo was not proceeding based
on an incomplete or inaccurate factual record. The government simply attempted

to influence the judge to impose a consecutive sentence by repeating the facts of

Saling’s prior convictions and his allegedly violent conduct while incarcerated,

most of which, if not all, previously had been disclosed to the court without
objection.11 As we earlier have directed, “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.”12

            The government knowingly violated its agreement, thus invalidating Saling’s



   9
    United States v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992) (quoting United
States v. Block, 660 F.2d 1086 (5th Cir.Unit B Nov. 1981)).
   10
     Block, 660 F.2d at 1090-91 (entering into a plea bargain agreement does not
forfeit the government’s right “to participate in either the presentence investigation
or the sentencing hearing”).
       11
       It is unclear from the record whether the court had been made aware of
Saling’s alleged assault of a corrections officer prior to the sentencing hearing.
Neither the PSI nor its Addendum reflect this alleged occurrence, but the AUSA
indicated she was aware that the probation department had informed the court of
all of Saling’s behavior while incarcerated pending sentencing, which would have
included this incident. Even if the court did not have knowledge of this alleged
incident, however, the prosecutor could have so informed the court and then
expressly stated that the government would not take a position on how such
conduct should affect Saling’s sentence due to the written plea agreement.
   12
        Valencia, 985 F.2d at 760.
                                             6
guilty plea.13 Saling has elected to withdraw that plea rather than secure specific
performance of the agreement. In United States v. Palomo,14 we held:

               A defendant who alleges that a plea agreement has been
         breached has the option of seeking one of two remedies on appeal: (1)
         specific performance, which requires that the sentence be vacated and
         that the defendant be resentenced by a different judge; or (2)
         withdrawal of the guilty plea, and the opportunity to plead anew,
         which requires vacation of both the conviction and the sentence.

         Accordingly, we VACATE Saling’s conviction and sentence and REMAND
this matter to the district court for further proceedings before another judge.




   13
        United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973).
   14
        998 F.2d 253, 256 (5th Cir. 1993).
                                             7
