                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  November 2, 2004
                        FOR THE FIFTH CIRCUIT
                        _____________________                   Charles R. Fulbruge III
                                                                        Clerk
                             No. 03-40834
                        _____________________

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

                                 versus

JOEL ANGEL GARCIA-COSTILLA,
also known as Joel Angel Garsia-Cortez,

                                            Defendant - Appellant.
__________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 5:03-CR-18-1
_________________________________________________________________

Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.

PER CURIAM:1

     Joel Angel Garcia-Costilla (“Garcia”) appeals his sentence

pursuant   to   his   guilty   plea   conviction    for   the     crime     of

transporting undocumented aliens within the United States by means

of a motor vehicle for private financial gain.              8 U.S.C. §§

1324(a)(1)(A)(ii) and (a)(1)(B)(i).       In the oral plea agreement,

Garcia consented to plead guilty in return for the Government’s

promise to recommend that he receive credit for acceptance of

responsibility at sentencing.

     On appeal, Garcia contends that the Government         breached the

     1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
oral plea agreement by arguing against a sentencing reduction for

acceptance of responsibility.         He seeks to have his sentence

vacated and to be re-sentenced before a different judge.     United

States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002) (stating that

a defendant alleging that the Government breached a plea agreement

may seek either a withdrawal of the guilty plea or specific

performance, requiring the sentence to be vacated and the case

remanded for re-sentencing before a different judge).        Garcia

concedes that the plain error standard of review applies because he

failed to object to the Government’s alleged breach at sentencing.

See United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003).

     Under the plain error standard of review, for a reviewing

court to exercise its discretion to correct an error, there must be

an error that is clear or obvious and that affects the defendant’s

substantial rights.    United States v. Olano, 507 U.S. 725, 732

(1993).   If such an error exists, the court of appeals may, in its

discretion, correct the error. Id. The court of appeals, however,

should only exercise that discretion if the error “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.”   Id.

     We first address the issue of whether the Government breached

the plea agreement.   “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



                                  2
349, 351-52 (5th Cir. 1985) (quoting Santobello v. New York, 404

U.S. 257, 262 (1971)).           Furthermore, if 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, 404 U.S. at 262.

Garcia contends that the Government breached the plea agreement

when it argued against a downward adjustment for acceptance of

responsibility.1            We agree.   The Government’s promises in the plea

agreement induced Garcia to plead guilty, and the Government did

not strictly adhere to the terms of the plea agreement.                          We

therefore hold that the Government breached its plea agreement with

Garcia.

       The Government’s breach of the plea agreement constitutes the

requisite clear or obvious error.              See United States v. Olano, 507

U.S.       725,    732-34    (1993).     In    the   light   of   the   waiver   of

constitutional rights involved in a guilty plea, the Government’s


       1
           At sentencing, the prosecutor said:

                  I think for obstruction of justice, I think
                  lying to the probation officer and basically
                  lying to the Court properly would warrant not
                  only denying acceptance, but he did the
                  obstruction as well because when he was
                  apprehended he stated to the Border Patrol
                  agents that he knew that the old man, as he
                  called him, was in the trunk....

                  We think that acceptance should be denied and
                  he should get obstruction as well.



                                           3
breach of the plea agreement affected Garcia’s substantial rights.

Id.; see United States v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir.

1992) (noting that “[d]efendants ... give up constitutional rights

in reliance on promises made by prosecutors, implicating the Due

Process Clause once the court accepts their pleas.”).   Finally, we

have no doubt that the Government’s breach of the plea agreement in

this instance also affected the fairness, integrity, or public

reputation of judicial proceedings.   Id. at 1328.

     Accordingly, we find that the Government breached the terms of

the plea agreement by arguing against an adjustment for acceptance

of responsibility; that this breach constituted plain error; and

the error affected the fairness, integrity, or public reputation of

judicial proceedings.   We therefore VACATE Garcia’s sentence and

REMAND the case to the district court for re-sentencing before

another judge.   See Gonzalez, 309 F.3d at 886.

                                             VACATED and REMANDED.




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