                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          APR 14 2003

                   UNITED STATES COURT OF APPEALS                    PATRICK FISHER
                                                                              Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

            Plaintiff - Appellee,
                                                        No. 02-6238
 v.                                              (D.C. No. 01-CR-01-116-T)
                                                  (W. District of Oklahoma)
 ADRIAN PEREZ-CAMPOS,

            Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.



      On March 6, 2002, Adrian Perez-Campos pled guilty to one count of

conspiracy to possess with intent to distribute cocaine, a violation of 21 U.S.C.

§ 846, and was sentenced to ninety-seven months’ imprisonment and three years’

supervised release. In his written Plea Agreement, Perez-Campos waived his


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
right to appeal his sentence, provided the sentence fell within or below the

applicable Guideline range. Notwithstanding the waiver, Perez-Campos appeals

his sentence, arguing that (1) the district court erred in calculating the drug

quantity attributable to him, and (2) the district court erred in denying his request

for a two-level reduction for being a minor participant in the conspiracy. He

contends that we should not enforce his appeal waiver because the government

breached the Plea Agreement at sentencing. In response, the government asserts

that Perez-Campos had previously violated the Agreement, thus vitiating its

responsibilities under the Agreement, but suggests we remand to the district court

for a hearing on the issue of whether a breach occurred. Because there is a

factual dispute about whether either party breached the Plea Agreement, we

remand to the district court for further proceedings.

                                           I

      We generally enforce a defendant’s knowing and voluntary waiver of the

statutory right to appeal his sentence. United States v. Atterberry, 144 F.3d 1299,

1300 (10th Cir. 1998). Perez-Campos does not assert that his guilty plea was

involuntary or unknowing. Moreover, we have reviewed the record, which shows

that the district court conducted a thorough hearing, and Perez-Campos

voluntarily waived his right to appeal.

        Perez-Campos argues that we should not enforce the waiver provision of


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his Plea Agreement here because the government breached the Agreement at

sentencing. “[A] waiver provision may be unenforceable if the government

breaches the terms of the Plea Agreement.” United States v. Guzman, 318 F.3d

1191, 1195 (10th Cir. 2003). Specifically, Perez-Campos contends that the

government breached the Agreement the moment it asked the district court to

consider whether he was entitled to credit for acceptance of responsibility, in

contravention of his expectation that the government would recommend a three-

point reduction. In response, the government claims that Perez-Campos breached

the Plea Agreement first, thereby vitiating the Agreement.

      The written Plea Agreement provided that “defendant should receive credit

for acceptance of responsibility, § 3E1.1(a) & (b) if he complies with the plea

agreement.” (1 R. Doc. 89 at 3.) Perez-Campos’s responsibilities under the Plea

Agreement included waiving his appeal rights and full cooperation with the

United States, but he explicitly reserved the right to argue drug quantities at

sentencing, and also the right to challenge his role in the offense. Based upon the

objections to the presentence report raised by Perez-Campos in relation to the

drug quantity attributable to him, however, the government asserted at sentencing

that “the defendant has gone beyond merely arguing and his right to argue drug

quantities, and . . . we do believe that the acceptance of responsibility is a serious

issue now raised based upon these objections.” (Sent. Tr. at 4–5.) Later in the


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hearing, the government stated that it appeared as if Perez-Campos “denied every

single allegation in the presentence report, which does call into question whether

he has accepted responsibility.” (Id.) Addressing whether Perez-Campos was

entitled to the reduction for acceptance of responsibility, the district court stated:

      Attributable drug amounts were expressly reserved by him in his plea
      agreement and, as well, in the proceeding in which he plead guilty,
      and I think that, under those circumstances and under all of the
      circumstances before the Court now, the acceptance of responsibility
      should not be taken away from him, and given every benefit of every
      doubt, as he has been in the attributable drug amounts, I think that
      fairness and justice will best be served by not denying him his
      acceptance under those circumstances.

(Id. at 33-34.)

      In Guzman, we recently concluded that “if the pleadings reveal a factual

dispute on the issue of breach [of a plea agreement], the district court must hold a

hearing to resolve the factual issues.” 318 F.3d at 1196. The facts in Guzman are

substantially identical to the instant case insofar as the defendant sought to appeal

his sentence notwithstanding his waiver, on the ground that the government

breached the Plea Agreement at sentencing. Similarly, the government, in

response, claimed that its actions were justified because Guzman had previously

breached the Agreement. Id. at 1196. In remanding to the district court, we held

that “the government may not unilaterally declare a breach of a plea agreement; a

court must hold a hearing and make a finding that the defendant breached the

agreement before the government is released from its obligations under the

                                          -4-
agreement.” Id. Here, as in Guzman, the district court did not hold a hearing to

determine whether either party breached the Plea Agreement, and thus we

remand. 1

      On remand, the court should hold a hearing to address whether the Plea

Agreement had been violated by either Perez-Campos or the government. See id.

at 1198. We remind the court that “it has the discretion to consider any relevant

evidence, even if it was not introduced in the initial sentencing proceedings.” Id.

Were the court to conclude that Perez-Campos did in fact breach the Plea

Agreement, the court need not determine whether the government later breached

the Agreement. See id. Barring waiver, of course, the government might choose

to reinstate prosecution. ( See 1 R. Doc. 89 ¶ 13.) However, if the court

determines that Perez-Campos did not breach the agreement, it must then decide

whether the government’s sentencing recommendations did. See Guzman, 318

F.3d at 1198. Were this to be the case, the court “must decide whether [Perez-


      1
         We recognize that any breach by the government may be claimed to be
harmless given that the district court nevertheless credited Perez-Campos with the
three-point reduction. In Guzman, however, we concluded that the defendant was
entitled to a hearing on the question of whether either he or the government
breached the Plea Agreement “regardless of the degree to which the government’s
recommendations prejudiced the sentencing judge.” 318 F.3d at 1198; see also
United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“When we
scrutinize the government’s conduct to determine whether it manifested an
exercise of its prerogative to void the plea agreement, our objective is to discover
whether the defendant’s waiver of his right to appeal remains effective, not
whether resentencing is required.”).

                                        -5-
Campos] should be resentenced under conditions where the government fulfills

the promises it made in the Plea Agreement (i.e., specific performance), or

whether he should be allowed to withdraw his guilty plea.” Id.

                                        II

      For the foregoing reasons, we REMAND to the district court with

instructions to VACATE Perez-Campos’s sentence and for further proceedings

consistent with this opinion.



                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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