     Case: 14-11131         Document: 00513498142         Page: 1     Date Filed: 05/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                        No. 14-11131
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                                 May 9, 2016

UNITED STATES OF AMERICA,                                                      Lyle W. Cayce
                                                                                    Clerk
                Plaintiff - Appellee

v.

JEHONI KIERRE WILLIAMS,

                Defendant - Appellant



                    Appeals from the United States District Court
                         for the Northern District of Texas


Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN*, District
Judge.
LESLIE H. SOUTHWICK, Circuit Judge:*
      Jehoni Kierre Williams pled guilty pursuant to a plea agreement. As
part of the agreement, the Government said it would recommend Williams be
sentenced at the bottom of the applicable Guidelines range. The Government
failed to make that recommendation. Williams appeals. We VACATE and
REMAND for Williams to elect whether to withdraw his plea or be resentenced.




      *   District Judge of the Southern District of Mississippi, sitting by designation.
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                                 No. 14-11131
                    FACTUAL AND PROCEDURAL BACKGROUND
      Jehoni Williams was charged with trafficking crack cocaine in a four-
count indictment. Williams pled guilty to one count of the indictment: intent
to distribute cocaine base. In his written plea agreement, the Government
agreed to dismiss the other three counts. The Government also agreed “to
make a non-binding recommendation to [sentence Williams at] the bottom of
the advisory guideline range found applicable in Williams’s case.”            The
Government failed to make this recommendation.            Williams’s Sentencing
Guidelines range was 151 to 188 months of imprisonment, and he was
sentenced to 188 months. He timely appealed.


                                    DISCUSSION
I.    Plain error
      Because Williams failed to make this argument in the district court, our
review is for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009).
To demonstrate plain error, (1) “there must be an error or defect . . . that has
not been intentionally relinquished or abandoned”; (2) “the legal error must be
clear or obvious, rather than subject to reasonable dispute”; (3) “the error must
have affected the appellant’s substantial rights”; and (4) “if the above three
prongs are satisfied, [we have] the discretion to remedy the error – discretion
which ought to be exercised only if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id. (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)). An error affects an appellant’s
substantial rights when there is “a reasonable probability that, but for the
error, he would have received a lesser sentence.” United States v. Hebron, 684
F.3d 554, 559 (5th Cir. 2012). Though the Government concedes that all four
factors of plain error are met here, we “give the issue independent review.”
United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008).
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                                  No. 14-11131
       The first two plain-error factors are clearly met. As to the third factor,
the district court sentenced Williams to the top of the applicable Guidelines
range. There is no indication the district court would have been unmoved by
the Government’s recommendation for a lower sentence. In one case, the
Government breached the plea agreement by failing both to file a motion for a
two-level reduction and to recommend a sentence at the low end of the
applicable Guidelines range. United States v. Bellorin-Torres, 341 F. App’x 19,
20 (5th Cir. 2009). We held that there was plain error, partially because there
was “nothing in the record to indicate that the district court would not have
granted [the] motion . . . .” Id. While Bellorin-Torres is unpublished, its
analysis is persuasive. Here, there is “a reasonable probability that, but for
the error, [Williams] would have received a lesser sentence.” Hebron, 684 F.3d
at 559. As to the last factor, “[t]he Government’s failure to fulfill its promise
affects the fairness, integrity, and public reputation of judicial proceedings . . .
.” United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). We therefore
conclude there is plain error.


II.    Election of relief
       Williams, in his brief, requests rescission of his plea agreement. While
the Government has conceded plain error, it argues that Williams is entitled
only to specific performance, i.e., a resentencing with the Government fulfilling
its promise to recommend a sentence at the low end of the Guidelines range.
       We have previously held that when “the government breache[s] its plea
agreement, [the defendant] may seek one of two remedies: (1) specific
performance, requiring that the sentence be vacated and that a different judge
sentence the defendant; or (2) withdrawal of the guilty plea.” United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). The Government never discusses
Gonzalez in its briefing, though it was cited by Williams.            Perhaps the
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Government would argue that having a right to “seek” one of two remedies
means only that a defendant may ask for certain relief but a district judge has
discretion to decide.
      Additional direction comes from a case in which the Government’s
knowing violation of its agreement invalidated the guilty plea. United States
v. Saling, 205 F.3d 764, 767 (5th Cir. 2000). We noted that the defendant
“elected to withdraw that plea rather than secure specific performance of the
agreement.” Id. We then quoted a similar decision:
      A defendant who alleges that a plea agreement has been breached
      has the option of seeking one of two remedies on appeal: (1) specific
      performance, which requires that the sentence be vacated and that
      the defendant be resentenced by a different judge; or (2)
      withdrawal of the guilty plea, and the opportunity to plead anew,
      which requires vacation of both the conviction and the sentence.
Id. at 768 (quoting United States v. Palomo, 998 F.2d 253, 256 (5th Cir.1993)).
      We will try to be clear.      When the Government breaches a plea
agreement, a defendant has the right (with a caveat we explain below) to have
his chosen remedy accepted, either specific performance of the plea agreement
and resentencing before a different judge, or withdrawal of the guilty plea.
      The Government adds to our analysis in citing United States v.
Castaneda, 162 F.3d 832 (5th Cir. 1998). That opinion requires that we assess
the materiality of the breach of a plea agreement when determining if relief is
warranted. Id. at 835−36. There, the Government promised not to prosecute
Castaneda if he cooperated. Id. at 834. After working with Castaneda for more
than a year, the Government withdrew from the deal because it determined
Castaneda was not entirely forthcoming with information. Id. at 836−37.
“Castaneda countered that he gave the government considerable, accurate, and
incriminating information . . . and that any omissions Castaneda made were
essentially inadvertent or duplicative and thus did not amount to a material
breach of the agreement.        In so many words, he argued substantial
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                                 No. 14-11131
performance.” Id. at 837. We then analyzed whether the breach was material,
determined that it was not, and concluded that the Government could not
rescind the agreement. Id. at 837−40.
      Perhaps, then, it is necessary first to find a breach to be material before
allowing the defendant to rescind the plea agreement. There is no mention of
materiality in the opinions of Gonzalez, Palomo, or Saling that we earlier
discussed, and Palomo predates Castaneda. Even so, it would be reasonable
to interpret those three opinions as dealing with material breaches.
      Regardless of whether a breach must be material before a defendant is
allowed to elect a remedy, we conclude the breach here was material. Indeed,
under plain-error analysis, we concluded that the breach affected Williams’s
substantial rights and “affect[ed] the fairness, integrity, and public reputation
of judicial proceedings . . . .” See Munoz, 408 F.3d at 226.
      On remand, Williams may make a final, counseled, and enforceable
election. Williams may rescind the entire agreement or he may be sentenced
again by a different judge.
      All pending motions are denied.
      VACATED and REMANDED.




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