                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0236p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 18-4234
        v.                                               │
                                                         │
                                                         │
 MARSHYIA S. LIGON,                                      │
                                Defendant-Appellant.     │
                                                         ┘

                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                   No. 1:18-cr-00351-1—Benita Y. Pearson, District Judge.

                                   Argued: August 8, 2019

                           Decided and Filed: September 11, 2019

              Before: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.
                                  _________________

                                         COUNSEL

ARGUED: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Appellant. James A. Ewing, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee. ON BRIEF: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland,
Ohio, for Appellant. James A. Ewing, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

       COLE, Chief Judge. Marshyia Ligon used her friend’s identification to purchase a gun
and subsequently pleaded guilty to making a false statement in acquisition of a firearm. During
plea negotiations, the government agreed to argue for a sentence in the Guidelines range as
 No. 18-4234                          United States v. Ligon                               Page 2


contemplated by the plea agreement, which was 21 to 27 months. At the sentencing hearing,
however, the government argued for a sentence within the Guidelines range as contemplated by
the probation office, which was 30 to 37 months because of an enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B). The district court concluded the enhancement applied and sentenced Ligon to
35 months’ imprisonment. Ligon appeals her sentence, arguing that the government breached
the plea agreement and that the district court erred in applying the enhancement. Because the
government argued for a higher sentence than contemplated by the plea agreement, it breached
the agreement and Ligon is entitled to resentencing before a different district judge.

                                       I. BACKGROUND

       On October 4, 2017, Marshyia Ligon purchased a Smith & Wesson, Model M&P 15,
556-caliber rifle from a store in Eastlake, Ohio, using her friend’s name and photo identification.
Ligon went to the store with her then-boyfriend, Darnell Peterson, but she could not purchase the
gun using her own name and identification because she was only nineteen, and Peterson could
not purchase the gun because he was only eighteen and under indictment for a felony offense of
violence. On October 11, 2017, the firearm purchased by Ligon was used in the attempted
robbery of a credit union by Melvin Hill, Arvin Williams, and Dawane Nelson. After the
attempted robbery, Peterson told Ligon that he was supposed to go with Hill, Williams, and
Nelson to rob the credit union but decided not to at the last minute.

       Ligon was charged with making a false statement in acquisition of a firearm in violation
of 18 U.S.C. § 922(a)(6) and pleaded guilty to that offense. In the plea agreement, the parties
agreed to “recommend that the [c]ourt impose a sentence within the range and of the kind
specified pursuant to the advisory Sentencing Guidelines in accordance with the computations
and stipulations” in the agreement, and that “[n]either party [would] recommend or suggest in
any way that a departure or variance is appropriate, either regarding the sentencing range or
regarding the kind of sentence.” (Plea Agreement, R. 17, PageID 89.) The plea agreement
computed Ligon’s base offense level as 14 and stated that no specific offense characteristics
applied.   The government agreed to recommend a two-level reduction for acceptance of
responsibility.
 No. 18-4234                          United States v. Ligon                                Page 3


       The presentence report (“PSR”) agreed that Ligon’s base offense level was 14 but also
recommended applying a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B), which
applies if a defendant transferred a firearm with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another felony offense. Ligon objected to the
PSR, arguing that the four-level enhancement should not apply because she did not know the
firearm would be used in connection with another felony.

       At sentencing, the district court concluded that Ligon had knowledge and reason to
believe the weapon would be used in a felony offense and found that the four-level enhancement
applied. The district court then applied the contemplated two-level reduction for acceptance of
responsibility, granted the government’s motion for an additional one-level reduction for
acceptance of responsibility, and calculated Ligon’s criminal history as category IV. The court
then announced that its Guidelines calculations “place[d] Ms. Ligon within the range of 30
months at the low end, 37 months at the high end” and asked the parties if they had any
objections. (Sentencing Hr’g Tr., R. 41, PageID 272.) The government responded that it did not
have any objections and Ligon noted her continued objection to the four-level enhancement.

       The district court then asked for allocution statements. The government asked the court
to “impos[e] a sentence within the guideline range as laid out, 30 to 37 months” and proceeded to
discuss the Section 3553(a)(1) factors, noting that a “sentence within this range” would reflect
the serious nature of the offense and promote respect for the law, and stating “a prison sentence
within this range would be called for in this case.” (Id. at PageID 273–76.) The government
argued that Ligon’s offense was “not merely just a straw purchase of a firearm” but instead was
an “egregious form of the offense”—a “straw purchase of . . . a semiautomatic assault rifle” that
“the court[] already found that she [had] reason to believe . . . would be used in a felony offense,
and it was indeed used in a very violent felony offense attempt.” (Id. at PageID 273–74.)

       At the beginning of Ligon’s allocution, she noted her belief that the plea agreement
“bound the government to the guideline range that was contemplated in the plea agreement,
which without th[e] four-level enhancement would be a guideline range of 21 to 27 months.”
(Id. at PageID 277.)     She then argued for a sentence at the bottom of the contemplated
Guidelines range—21 months.         After hearing both parties’ arguments, the district court
 No. 18-4234                          United States v. Ligon                                 Page 4


sentenced Ligon to 35 months’ imprisonment. After the sentence was imposed, Ligon again
reiterated her objection to the four-level enhancement. The district court overruled her objection,
and then asked the government “to explicitly state [its] objections for the record.” (Id. at PageID
294.) The government and the district court then had the following interaction:

       [Gov’t]:       Well, with respect to the four-level enhancement, it was our
                      position -- and, again, in my -- and I’m not sure if this would -- if it
                      would be an objection. But I would just reiterate that what I put in
                      my sentencing memorandum, that was still the government’s
                      position. I realize that when I was arguing for a sentence, and a
                      lengthy sentence, which I do believe that this defendant deserves,
                      and it’s already been imposed by this court, I said 31 to 37 months.
                      However, I didn’t want to -- I don’t want to be inconsistent. It was
                      the position --
       [Court]:       Listen, I’m not sure what you’re trying to say, but maybe I can
                      help you.
       [Gov’t]:       Okay.
       [Court]:       The plea agreement that Ms. Ligon entered doesn’t obligate me to
                      do one thing or the other. And, in fact, had it, at this juncture,
                      meaning at this moment, I’d reject it and impose the sentence that
                      I’ve just imposed. I’m not bound by that agreement. I’m not the
                      government. I’m not the defense. So if you intend to make an
                      objection, by George, make it now or take your seat.
       [Gov’t]:       Okay. Then I would object to that enhancement. I --
       [Court]:       Overruled for the reasons stated.

(Id. at PageID 294–95.)

       The district court subsequently entered its judgment and Ligon timely appealed her
sentence.

                                         II. ANALYSIS

       Ligon argues that the government breached the plea agreement by arguing for a sentence
within the range of 30–37 months, rather than the contemplated 21–27 months. “We review the
question of whether the government’s conduct, or lack thereof, violated its plea agreement with a
defendant de novo.” United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).
 No. 18-4234                          United States v. Ligon                             Page 5


       “Plea agreements are contractual in nature. In interpreting and enforcing them, this
[c]ourt uses traditional principles of contract law.” United States v. Lukse, 286 F.3d 906, 909
(6th Cir. 2002). Plea agreements must “be enforced according to their terms.” United States v.
Moncivais, 492 F.3d 652, 662 (6th Cir. 2007). “In determining whether a plea agreement has
been broken, courts look to what was reasonably understood by the defendant when he entered
his plea of guilty.” United States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990) (quotations and
alterations omitted).    “Ambiguities in a plea agreement must be construed against the
government.” United States v. Fitch, 282 F.3d 364, 367 (6th Cir. 2002).

       It is a “seemingly self-evident proposition that prosecutors cannot breach plea
agreements.” Lukse, 286 F.3d at 913. “[W]hen 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.” Santobello v. New York, 404 U.S. 257, 262
(1971). “Because a defendant obtains a plea agreement only at the expense of his constitutional
rights, ‘prosecutors are held to meticulous standards of performance.’” Moncivais, 492 F.3d at
662 (quoting United States v. Vaval, 404 F.3d 144, 152–53 (2d Cir. 2005)). “Satisfying this
obligation requires more than lip service on a prosecutor’s part.” Id. The government may not
explicitly repudiate the agreement or engage in an “end-run[] around” the promises contained in
the agreement. Id. (internal citations and quotations omitted).

       If the government breaches a plea agreement, a defendant is entitled to relief regardless
of whether the district court was ultimately influenced by the breach and regardless of whether
the breach was inadvertent. The Supreme Court made these two principles clear in Santobello.
There, the defendant entered into a plea agreement that stated that the prosecutor would not make
any sentence recommendation. 404 U.S. at 262. But at sentencing, a new prosecutor who
replaced the prosecutor who had negotiated the plea recommended the maximum one-year
sentence, “apparently ignorant of his colleague’s commitment.” Id. at 259. The Court held that
the government breached the plea agreement and stated “[t]hat the breach of the agreement was
inadvertent does not lessen its impact.” Id. at 262.

       And even though the sentencing judge explicitly stated that he was “not at all influenced”
by what the government said, the Court still found that “the interests of justice and appropriate
 No. 18-4234                            United States v. Ligon                             Page 6


recognition of the duties of the prosecution in relation to promises made in the negotiation of
pleas of guilty” necessitated a remand. Id. at 259, 262. Thus, “the touchstone of Santobello is
whether the prosecution met its commitment and not whether the court would have adopted the
government’s recommendation.” Cohen v. United States, 593 F.2d 766, 772 (6th Cir. 1979)
(italicization added); see also Barnes, 278 F.3d at 648 (explaining that “the fact that a sentencing
court may have implied that it would not have accepted a certain recommendation made by the
government in a plea agreement” is an “insufficient reason[] to find that the government upheld
its part” of the agreement).

       After Santobello, we have found repeatedly that a defendant is entitled to relief when the
government breaches a plea agreement, even if the breach was inadvertent or did not affect the
district court’s decision. See, e.g., Barnes, 278 F.3d at 647–48 (finding reversible error when
government agreed to recommend that defendant be sentenced at the low end of the Guidelines
but failed to state his recommendation on the record); Lukse, 286 F.3d at 913 (“While the
government might have inadvertently failed to determine whether the Appellants provided
substantial assistance during other investigations, . . . an inadvertent failure to perform
obligations under a plea agreement is nonetheless a breach.”); United States v. Swanberg,
370 F.3d 622, 628–29 (6th Cir. 2004) (finding a violation of the plea agreement “when the
district court unwittingly relied upon the information from [defendant’s] guilty-plea proffer in
imposing the sentence enhancement, and the prosecutor said nothing to correct this error” despite
the plea agreement’s promise that the proffered information would not be used at sentencing);
United States v. Fitch, 282 F.3d 364, 366–68 (6th Cir. 2002) (holding that the government
breached the plea agreement by arguing for an increase due to defendant’s leadership role,
despite agreeing that “no other relevant conduct” would be used to increase the defendant’s base
offense level). Today, we do so again.

       The government breached the plea agreement by arguing for a sentence above the agreed-
upon Guidelines range.         The government does not dispute that it agreed to recommend a
Guidelines range of 21 to 27 months, or at least to abstain from making a recommendation
outside of that range. But at sentencing the government asked the district court to impose a
sentence “within the guideline range as laid out [by the court], the 30 to 37 months.”
 No. 18-4234                          United States v. Ligon                               Page 7


(Sentencing Hr’g Tr., R. 41, PageID 273.)        Furthermore, the government emphasized the
“egregious form of the offense,” pointed out that the court “already found that [Ligon had]
reason to believe that [the gun] would be used in a felony offense,” and emphasized Ligon’s
“lengthy criminal history,” arguing that “a sentence within [the 30- to 37-month range] would
certainly reflect both the serious nature of this offense and promote respect for the law.” (Id. at
PageID 273–76.) The government’s argument for a sentence within 30 to 37 months violated the
plain terms of the plea agreement.

       The government admits that it mistakenly asked for a sentence within the 30- to
37-month range but contends that its acknowledgement of its misstatement at the end of the
hearing “cured” any breach. Some circuits “have allowed for the curing of a plea agreement
breach,” which occurs when the legal defect is removed, or the legal error is corrected. United
States v. Purser, 747 F.3d 284, 293–94 (5th Cir. 2014). But, to the extent a cure is possible, our
sister circuits require that the government offer an “unequivocal retraction” of its erroneous
position to sufficiently cure a breach. United States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir.
2010) (concluding that government’s equivocal retraction of earlier argument for a sentence at
the top of the Guidelines range did not cure the breach of plea agreement, which required the
government to recommend a sentence at the bottom of Guidelines range); see also Purser,
747 F.3d at 293 n.44 (“[A]n equivocal or half-hearted recantation may be inadequate to cure a
breach.”).

       Even if we were to recognize that the government can cure its breach, it did not
unequivocally retract its erroneous argument. The government’s attorney stated, “I realize that
when I was arguing for a sentence, and a lengthy sentence, which I do believe that this defendant
deserves, and it’s already been imposed by this court, I said 31 to 37 months. However, I didn’t
want to -- I don’t want to be inconsistent. It was the position --” (Sentencing Hr’g Tr., R. 41,
PageID 294.) It is not clear what the government was going to say next, because it was
interrupted by the district judge—who noted she was “not sure what [the government was] trying
to say”—so we do not know what position the government was ultimately going to endorse.
(Id. at PageID 294–95.) And the position that was taken by the government in its alleged attempt
to cure was that Ligon “deserve[d]” the “lengthy sentence” that was already imposed by the
 No. 18-4234                         United States v. Ligon                               Page 8


court. (Id. at PageID 294.) Such a statement indicating that the prosecutor disagrees with the
plea agreement’s recommendation cannot constitute a cure of the breach. See Diaz-Jimenez,
622 F.3d at 696–97 (finding no cure when prosecutor “undermined the plea agreement by saying
‘I suppose a larger sentence could be appropriate’”). The district court’s confusion is further
evidence that any attempted cure was not unambiguous. Furthermore, the government tried to
correct its mistake only after the district court imposed a sentence—a sentence within the higher
range impermissibly argued for by the government. The government has pointed us to no cases
in which a court has found a cure after a defendant’s sentence has been imposed. In these
circumstances, we conclude that the government did not cure its breach.

       We next turn to Ligon’s remedy. In Santobello, the Court left it up to the trial court to
determine whether the defendant was entitled “only” to specific performance of the plea
agreement, “in which case [the defendant] should be resentenced by a different judge,” or
whether the defendant should be granted the relief he sought, “the opportunity to withdraw his
plea of guilty.” 404 U.S. at 263. We have interpreted Santobello to mean that “[a] breached plea
agreement may be remedied by either specific performance of the agreement or by allowing the
defendant to withdraw the plea.” Mandell, 905 F.2d at 973. When a defendant, like Ligon,
seeks only “the lesser relief of specific performance of the agreement,” there is no need for the
district court to determine the remedy—we “should honor that election . . . and remand with
direction that [she] ‘be resentenced by a different judge.’” United States v. Warner, 820 F.3d
678, 685 (4th Cir. 2016) (quoting Santobello, 404 U.S. at 263).

       The government’s argument that Ligon need not be resentenced by a different district
judge is foreclosed by Santobello. 404 U.S. at 263 (holding that if petitioner is granted specific
performance he “should be resentenced by a different judge”).          Indeed, we have already
concluded that the appropriate remedy for the government’s breach of a plea agreement is
“vacat[ing] the defendant’s sentence and remand[ing] for resentencing before a different district
court judge.” Fitch, 282 F.3d at 368; Barnes, 278 F.3d at 649 (same). Resentencing before a
different district judge is necessary for defendants to get the benefit of the bargain, and to
preserve the appearance of an impartial judiciary—one that is not influenced by the prosecutor’s
previous breach. We emphasize that resentencing before a different district judge “is in no sense
 No. 18-4234                           United States v. Ligon                               Page 9


to question the fairness of the sentencing judge” and is not “intend[ed as] criticism of the district
judge.” Fitch, 282 F.3d at 368 (quoting United States v. Mondragon, 228 F.3d 978, 981 (9th Cir.
2000)); see also Barnes, 278 F.3d at 649. Nonetheless, resentencing before a different district
judge is the appropriate remedy when the government breaches a plea agreement and Ligon is
entitled to such relief.

        In light of this conclusion, we need not reach Ligon’s second argument on appeal, that
the district court clearly erred in applying the four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(6)(B).

                                       III. CONCLUSION

        For these reasons, we vacate Ligon’s sentence and remand her case for resentencing
before a different district judge.
