                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             June 7, 2007
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 07-1018
 GEORGE C. WHITE,                                     (D.C. No. 06-CR-275-MSK)
                                                             (D. Colorado)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.

       George White (“White”) was indicted on multiple child pornography offenses and

entered into a plea agreement with the government. On appeal, he claims the government



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
breached the terms of this plea agreement by advocating a ten-year term of supervised

release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and remand with directions to

vacate White’s sentence and resentence before a different judge.

                                             I.

       In July of 2006, White was indicted on ten counts of receipt of child pornography

through interstate commerce by computer or other means in violation of 18 U.S.C. §

2252A(a)(2)(B) and one count of possession of child pornography received through

interstate commerce by computer or other means in violation of 18 U.S.C. §

2252A(a)(5)(B). White entered into a plea agreement with the government and pled

guilty to six counts of willful and knowing receipt of child pornography in violation of 18

U.S.C. § 2252A(a)(2)(B). In exchange, the government agreed to “recommend to the

Court that defendant be sentenced to the bottom of the guideline range,” dismiss the

remaining counts, and recommend a three-level reduction for acceptance of

responsibility. Record on Appeal, (“ROA”), Vol. I, Doc. 22 at 1-2.

       A presentence report (“PSR”) was prepared and recommended a sentence of 121

months’ imprisonment to be followed by six years of supervised release. Id., Vol. IV at

R-1, SA-1. White had a category I criminal history. Id. The advisory guideline range

suggested a sentence of 121 to 151 months’ imprisonment and a supervised release period

of two years to life. Id.

       At White’s sentencing hearing, the court announced its intention to sentence White

to 121 months’ imprisonment to be followed by ten years of supervised release. Id., Vol.

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III at 24. The government responded that it recommended 121 months per count to be

served concurrently and also stated that “we have no objection to the Court’s imposition

of a 10-year term of supervised release.” Id. at 25. White’s counsel argued that six years

of supervised release would be sufficient and that a ten-year period would be

“unnecessary and unreasonable in light of the circumstances.” Id. The government

responded that ten years of supervised release was appropriate in light of stipulated facts

in the plea agreement. White’s counsel argued that the government’s support of a ten-

year term of supervised release seemed inappropriate in light of the government’s

promise to recommend a sentence at the low end of the advisory range, but counsel added

that White did not seek to withdraw his plea. The government responded that it did not

believe the plea agreement included a recommendation regarding supervised release. The

district court sentenced White to 121 months’ imprisonment and ten years of supervised

release.

                                              II.

           “A claim that the government has breached a plea agreement is a question of law

we review de novo, even where the defendant failed to object at the time of the alleged

breach.” United States v. Rodriguez-Delma, 456 F.3d 1246, 1250 (10th Cir. 2006), cert.

denied, 127 S. Ct. 1338 (2007). To determine whether a breach has occurred, we “1)

examine the nature of the promise; and 2) evaluate the promise in light of the defendant’s

reasonable understanding of the promise at the time of the guilty plea.” Id. (citations

omitted). “General principles of contract law define the government’s obligations under

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the agreement, looking to the express language and construing any ambiguities against

the government as the drafter of the agreement.” Id. at 1250-51.

       White argues that the government breached the plea agreement by recommending

a term of supervised release well over the guideline minimum because the word

“sentence” in a plea agreement encompasses not only the term of imprisonment, but also

the term of supervised release. See United States v. Sandoval, 477 F.3d 1204, 1207 (10th

Cir. 2007) (finding that supervised-release conditions are part of “sentence” in context of

appellate waiver in plea agreement). White requests a remand for resentencing by a

different judge.

       White’s plea agreement stated that the government would “recommend to the

Court that defendant be sentenced to the bottom of the guideline range once that range

has been determined by the Court.” ROA, Vol. I, Doc. 22 at 2. The government

concedes that it breached the plea agreement because this language is ambiguous and

must be construed against the government as the drafter of the document. The

government also agrees with White that a remand for resentencing by a different judge is

an appropriate remedy.

       As counsel has argued, we have held that the appropriate remedy for a breach of a

plea agreement by the government is either withdrawal of the plea agreement or

resentencing before a different judge. See United States v. Brye, 146 F.3d 1207, 1213

(10th Cir. 1998); United States v. Hawley, 93 F.3d 682, 693-94 (10th Cir. 1996). As

White does not seek to withdraw his plea, we will provide the alternative remedy of

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resentencing before a different judge. We further add that this remedy is not intended to

reflect in any way upon the fairness of the sentencing judge whose actions did not cause

this result.

                                           III.

        We REMAND with directions to vacate White’s sentence and resentence before a

different judge.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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