UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 98-4336
JANETH PARRALES, formerly known
as Carmen Lyndia Martinez,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-97-152)

Submitted: February 9, 1999

Decided: March 9, 1999

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, Robert H. Hale, Jr.,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, John Howarth Bennett,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Janeth Parrales pled guilty to possession of cocaine with intent to
distribute and was sentenced to the statutory minimum of 120 months
imprisonment. See 21 U.S.C.A. § 841 (West 1981 & Supp. 1998). She
seeks resentencing on the ground that the government breached the
plea agreement by opposing a sentence under the safety valve provi-
sions of 18 U.S.C.A. § 3553(f) (West Supp. 1998), and U.S. Sentenc-
ing Guidelines Manual § 5C1.2 (1997). Because we find that the
government breached the agreement, we vacate the sentence and
remand for resentencing under the terms of the agreement.

After a traffic stop and consensual search of the van Parrales was
driving in September 1997, twenty-seven kilograms of cocaine were
discovered in the wheel wells of the vehicle. Parrales was arrested and
charged under the name "Carmen Lyndia Martinez." On January 20,
1998, still using the alias, Parrales entered into a plea agreement in
which the government agreed that she should receive adjustments for
acceptance of responsibility and for having a minor role, and that she
was eligible to be sentenced under the provisions of 18 U.S.C.A.
§ 3553(f) and USSG § 5C1.2--the safety valve provision.1

The agreement also provided that, "if the Defendant's conduct prior
to sentencing changes the circumstances with respect to any such fac-
_________________________________________________________________
1 The safety valve provision permits a sentence below the mandatory
minimum when (1) the defendant has no more than 1 criminal history
point; (2) he did not use violence, threats, or a dangerous weapon in the
offense; (3) the offense did not result in death or serious bodily injury;
(4) the defendant did not have an aggravating role and was not engaged
in a continuing criminal enterprise; and (5) no later than sentencing, the
defendant has truthfully provided to the government all information and
evidence he has concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan.

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tors, the Government is no longer bound to its position as to those fac-
tors." Just before the Fed. R. Crim. P. 11 hearing, Parrales informed
the government of her true name. The government elected to go ahead
with the plea agreement. In February 1998, Parrales informed the
government that two more kilograms of cocaine were concealed in the
van and, at the same time, submitted a statement to the government
and the probation officer in which she said that her boyfriend, Ramon
Fuentes, had given her the money to buy the van two days before her
arrest and had asked her to drive it to New York from Florida, where
she lived. She said she knew the van would contain drugs but did not
know the amount. She also stated that she had previously bought a car
at Fuentes' request for use by Luis Lopez, who was arrested in 1997
in California driving a car registered to Carmen Martinez (Parrales'
alias) in which police found thirty kilograms of cocaine.

Parrales had no prior convictions. However, she had pending drug
charges from 1992 under her real name in New Jersey. During prepa-
ration of the presentence report, the probation officer also learned
through a fingerprint check that Parrales had a pending charge for
shoplifting in California in 1994 under another alias (Sylvia Rodri-
guez) for which she had failed to appear. Because Parrales had
appeared in court under a false name, but had also voluntarily dis-
closed her true name and criminal history (with the exception of the
pending shoplifting charge), the probation officer recommended that
she should receive adjustments for both acceptance of responsibility
adjustment and obstruction of justice.

At sentencing, the government made no objection to the probation
officer's recommendations, but argued against sentencing Parrales
under the safety valve provision. First, the government attorney said
he was not sure she had provided all the information she could. Later,
he abandoned this position and argued that, even assuming she had
provided all the information she had, the safety valve reduction was
simply incompatible with an obstruction of justice adjustment. As a
result, Parrales received the mandatory minimum sentence of 120
months.2
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2 Had the district court applied the safety valve provision, Parrales'
offense level would have dropped from 31 to 29, see USSG
§ 2D1.1(b)(6), and her guideline range would have been reduced from
108-135 months to 87-108 months. The court would have been able to
impose sentence below the statutory minimum of 120 months.

                    3
Because the government's alleged breach of the plea agreement is
raised for the first time on appeal, the issue is reviewed for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997). A guilty plea
is invalidated if the prosecutor's promises are not carried out, because
the plea is then involuntary. See Santobello v. New York, 404 U.S.
257, 262 (1971); United States v. Peglera, 33 F.3d 412, 413-14 (4th
Cir. 1994). A clear breach of this kind constitutes plain error which
requires that the defendant be resentenced before a different judge.
See McQueen, 108 F.3d at 66-67; Peglera, 33 F.3d at 415.

Here, the government failed to stand by its agreement that Parrales
was eligible to be sentenced under the safety valve provision and
failed to show that her conduct between the entry of the guilty plea
and the sentencing hearing changed the circumstances with respect to
this factor. While a defendant has the initial burden of proof to show
that he is eligible for the safety valve reduction, see United States v.
Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996), the government's stipu-
lation that Parrales was eligible relieved her of this burden. It then
became the government's burden to show that she had provided
incomplete or inaccurate information. See United States v. Shrestha,
86 F.3d 935, 940 (9th Cir. 1996). This the government did not do.

The government argues on appeal that Parrales' conduct after her
guilty plea changed the circumstances in that she failed to disclose
that she had a pending California shoplifting charge under another
alias, and she failed to disclose the additional two kilograms of
cocaine hidden in the van during plea negotiations. We find that nei-
ther of these facts was sufficient to release the government from its
obligation under the plea agreement.

First, § 5C1.2(5) requires a defendant to truthfully provide to the
government all he knows about "the offense or offenses that were part
of the same course of conduct or of a common scheme or plan" as the
offense of conviction. See 18 U.S.C.A. § 3553(f); USSG § 5C1.2(5).
The government did not argue that the shoplifting charge was part of
the instant offense or connected to it, nor does the government make
this argument on appeal, and no connection is apparent from the
information in the presentence report.

                    4
Second, Parrales' disclosure of the additional two kilograms of
cocaine after she entered her guilty plea and at the same time she sub-
mitted her statement to the government did not violate her responsi-
bility to tell the government all she knew about the offense. Rather,
it appears to have been an attempt to comply with the agreement.

The government maintains that this case is distinguishable from
Peglera and United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir.
1976), on which Parrales also relies, because the plea agreement gave
the government "the power to determine whether or not the defen-
dant's conduct warrants a change in the Government's position."
However, neither at sentencing nor on appeal has the government pro-
vided a justifiable basis for changing its position on whether Parrales
qualified for the safety valve reduction.

The remedy for a government breach of the plea agreement is to
resentence the defendant before a different district court judge so that
he may have the benefit of his bargain. See McQueen, 108 F.3d at 66-
67. Because the government failed to honor its obligation under the
plea agreement, we vacate the sentence and remand for resentencing
before a different judge. On resentencing, the government must keep
the promise made in the agreement. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

VACATED AND REMANDED

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