                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10273         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        FEB 14, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                         D.C. Docket No. 4:09-cr-00022-WTM-GRS-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

DEREK MARCELL JETER,

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Southern District of Georgia
                                ________________________

                                     (February 14, 2011)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Derek Marcell Jeter appeals his 46-month above-guideline sentence imposed

following his guilty plea to one count of bank fraud, in violation of 18 U.S.C. § 1344.
On appeal, Jeter argues that the government breached the plea agreement by

recommending an above-guideline sentence, which requires us to remand for

re-sentencing. Because he knowingly and voluntarily entered his guilty plea, Jeter

requests that we order re-sentencing before a different district court judge. After

careful review, we vacate and remand.

      We review de novo whether the government breached a plea agreement.

United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). When a plea rests

in any significant portion on the government’s promise or agreement, so that it

becomes part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 262 (1971).

      We have held that whether the district court considered or was influenced by

the government’s position on the sentencing issue is not relevant. United States v.

Johnson, 132 F.3d 628, 630 (11th Cir. 1998). When analyzing an alleged violation

of a plea agreement, we do “not address the district court’s exercise of discretion in

imposing a sentence. Rather, we focus on the government’s violation of its plea

agreement.” Id. (quotation and emphasis omitted). We have held that “[a]dvocacy

of a position requiring a greater sentence is flatly inconsistent with recommendation

of a lesser sentence.” United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). In

Taylor, the government conceded that its support of the PSI’s position on related

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conduct was incompatible with the plea agreement’s terms, but it argued that it cured

the breach by recommending the appropriate sentence at the sentencing hearing. Id.

at 371. We disagreed and held that the government’s recommendation, “which

merely paid ‘lip service’ to the agreement, [was] insufficient to rectify the breach

committed when the government advocated a position requiring a longer sentence

than it had agreed to recommend.” Id.

      When the government’s breach of an agreement has been established, we may

either order specific performance of the agreement by means of re-sentencing before

a different judge or allow a withdrawal of the plea. Johnson, 132 F.3d at 631. We

have not favored withdrawal of the guilty plea where, as here, no question exists that

the plea was knowingly and voluntarily entered. Id.

      In the plea agreement and at Jeter’s Rule 11 hearing, the government agreed

that it would recommend a within-guideline sentence.           But in a sentencing

memorandum and at sentencing, the government advocated a 51-month

above-guideline sentence. By recommending an above-guideline sentence, the

government clearly violated the plea agreement. Further, as it concedes, the

government’s apology and subsequent within-guideline recommendation failed to

cure the breach. See Taylor, 77 F.3d at 371. Moreover, the district court did not cure

the government’s breach when it stated that it did not rely upon the government’s

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initial recommendation in imposing Jeter’s sentence. See Santobello, 404 U.S. at 262

(remanding case even though the Court had “no reason to doubt” the sentencing

judge’s statement that “the prosecutor’s recommendation did not influence him”).

Finally, as in Johnson, 132 F.3d at 631, Jeter does not seek to withdraw his knowing

and voluntary guilty plea. Therefore, as the government agrees, our precedent

compels us to vacate Jeter’s sentence and order that he be resentenced by a different

district court judge.

      VACATED AND REMANDED.




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