               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                  _______________________________

                      Nos. 95-31026 & 96-30117
                  _______________________________


          UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee,

          v.

          TERRY WAYNE TOWNLEY,

                                 Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                          (CR-91-20008-01)
_________________________________________________________________
                           April 11, 1997
Before POLITZ, Chief Judge, and WISDOM and KING, Circuit Judges.

PER CURIAM:*

     Terry Wayne Townley challenges his sentence entered pursuant

to a guilty plea and plea agreement as well as the district

judge’s refusal to recuse himself on the basis of personal bias.

Because we conclude that the government breached the plea

agreement, we vacate the sentence and remand for resentencing

before a different judge.

                            I.   BACKGROUND



     *
        Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
     Pursuant to a plea agreement, Terry Wayne Townley pleaded

guilty to one count of conspiracy to kidnap.   The district court

sentenced Townley to a 300-month term of imprisonment, an upward

departure from the sentence range in the Sentencing Guidelines.

On March 9, 1993, this court vacated Townley's sentence and

remanded to the district court for resentencing.    The district

court again sentenced Townley to 300 months imprisonment, and

Townley again appealed his sentence.   On December 28, 1994, this

court affirmed because the district court gave acceptable reasons

for its upward departure and the extent of the departure was not

an abuse of discretion.

     On September 7, 1995, Townley filed a pro se motion to

vacate his sentence under 28 U.S.C. § 2255, alleging that the

government had breached the plea agreement by recommending an

upward departure and that the district judge's "personal bias

against Townley facilitated a Fifth Amendment violation."

Townley also filed a motion to disqualify the district judge.1

The district court denied the motion to disqualify, and Townley

appealed.   By order entered on October 6, 1995, the district

court dismissed Townley’s § 2255 motion.   Townley filed a notice

of appeal from that ruling on October 19, 1995.    On January 8,

1996, Townley filed a “Request for a Rule 35 F.R.C.P.”    The


     1
        Because we conclude that Townley must be resentenced
before a different judge, we need not address the merits of
Townley’s claim that the trial judge was biased against him.     We
note, however, that Townley’s claim is without merit. See
Liteky v. United States, 510 U.S. 540 (1994).

                                 2
district court dismissed the motion, and Townley filed a timely

notice of appeal from that dismissal.

     Townley has two appeals pending before this court:    No. 95-

31026 concerns Townley’s motion to disqualify the district judge

and his motion for relief under § 2255 and No. 96-30117 concerns

Townley’s Rule 35 motion.    The appeals have been consolidated.2

                            II.   DISCUSSION

                 A.   28 U.S.C. § 2255 arguments

                        1.    procedural bar

     The government argues that Townley is procedurally barred

from making his § 2255 claims because he did not raise the

arguments on direct appeal. "Relief under 28 U.S.C.A. § 2255 is

reserved for transgressions of constitutional rights and for a

narrow range of injuries that could not have been raised on

direct appeal and would, if condoned, result in a complete

miscarriage of justice."     United States v. Vaughn, 955 F.2d 367,



     2
        Because it is a jurisdictional issue, on our own motion,
we examine whether Townley’s appeal is properly before this court
because he has not obtained a certificate of appealability. As
amended by the Antiterrorism and Effective Death Penalty Act
(AEDPA), to appeal the district court’s ruling on a 28 U.S.C. §
2255 motion, the appellant must obtain a certificate of
appealability (COA). This court has recently ruled that when
both the final judgment and notice of appeal are filed before the
effective date of the AEDPA amendments, the COA requirement for §
2255 motion does not apply. United States v. Rocha, No. 95-
11229, 1997 WL 123580, at *3 (5th Cir. Apr. 3, 1997). Because
the final judgment and Townley’s notice of appeal were filed
before AEDPA’s effective date, we conclude that Townley does not
need a COA and that Townley’s appeal is properly before this
court.

                                    3
368 (5th Cir. 1992).    Further, a defendant generally may not

raise a fundamental constitutional error in a § 2255 petition for

the first time without showing both cause for the procedural

default and actual prejudice resulting from the error.       United

States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992).     However, to

invoke the procedural bar, the government must raise it in the

district court.    Id. at 995.   In the instant case, the government

did not raise the procedural bar in the district court because

the motion was summarily denied before the government could file

a response.    Thus, we must review Townley’s § 2255 argument on

the merits.3

                  2.   breach of the plea agreement

     Townley argues that the government breached the plea

agreement by recommending an upward departure.    The plea

agreement provided that “[a]t the time of sentencing, the United

States agrees to make no recommendation as to an appropriate

sentence” and also stated that


     3
        In his reply brief, Townley asserts that if “the issues
raised in the Defendant’s Petition upon which this appeal is
based, were not preserved, then as a matter of law, the Defendant
has been denied effective assistance of counsel.” The
ineffective assistance of counsel argument is irrelevant because
we conclude that we can consider Townley’s § 2255 arguments.
     Townley also asserts ineffective assistance of counsel
because at sentencing, his attorney “refused to call several
witness [sic] in my behalf, refussed [sic] to question or address
the PSI, when in fact it was wrong.” These are all the details
Townley provides concerning his claim. Townley’s failure to
provide supporting arguments for this claim amounts to a failure
to raise it, and thus we will not consider it on appeal. See
Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir. 1987).

                                   4
          [a]t the time of sentencing the United States will
     not oppose any sentence recommendation by the defendant
     or his counsel as to what the appropriate sentence
     should be, as long as that sentence is not less than
     the minimum sentence called for by the guideline
     sentencing range . . . . The United States, however[,]
     reserves the right to correct any factually erroneous
     information proffered by the defendant or his counsel
     . . . .

There is no argument that the government breached this agreement

during the first sentencing.   However, after this court vacated

the sentence and remanded for resentencing, the government made

several statements that Townley contends violated the plea

agreement.   At the sentencing hearing, the government stated:

     [T]he United States would stress that this court, in
     its initial sentencing of the defendant, sentencing the
     defendant to twenty-five years was clearly justified by
     the evidence. There has been additional evidence
     submitted . . . . Twenty-five years was a minimal
     amount that the court was justified in sentencing the
     defendant to. The court was justified in sentencing
     the defendant to thirty years based on the extreme
     physical and emotional abuse . . . . The guidelines
     could never take that into account. The government,
     your honor, would ask that the defendant be sentenced
     to thirty years incarceration.

The government later stated that is was “asking for a substantial

upward departure.”    Townley claims that these statements breach

the plea agreement.   The trial court denied Townley’s § 2255

motion, stating that “[t]his court has the right, and in fact

did, move for an upward departure on its own accord. . . .

Therefore, there was no breach of the plea agreement by the

government.”   The government agrees and further asserts that the

government’s statements did not influence the sentencing judge



                                  5
because Townley would likely have received the same sentence

without those statements.

     In reviewing a district court’s denial of a § 2255 motion,

this court reviews factual findings for clear error and

conclusions of law de novo.   United States v. Faubion, 19 F.3d

226, 228 (5th Cir. 1994).   Whether the government has breached a

plea agreement is a question of law reviewed de novo.       United

States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).

     "[I]f a prisoner's guilty plea is based `in any significant

degree’ on a prosecutor's promise which reasonably may be said to

be part of the consideration for the agreement, that promise must

be fulfilled."   United States v. Birdwell, 887 F.2d 643, 645 (5th

Cir. 1989)(quoting Santobello v. New York, 404 U.S. 257, 262

(1971)).   The government must “strictly adhere” to the terms of

the agreement.   Valencia, 985 F.2d at 760.     If we determine that

the government has breached a plea agreement, “specific

performance of the agreement is called for, and Appellant must be

sentenced by a different judge.”       Id. (internal alterations and

quotation omitted).

     It seems clear that the trial court’s conclusion that the

government did not breach the plea agreement was erroneous.      The

plea agreement clearly states that the government “agrees to make

no recommendation as to an appropriate sentence,” and yet at

sentencing the government requested “a substantial upward

departure.”   The government even admits in its brief that the

                                   6
statements “went beyond what was contemplated in the plea

agreement.”

     The essence of the government’s defense is that its

statements did not affect the sentencing judge.   However, in

Valencia, we found a similar argument unpersuasive.    Id. at 761.

In Valencia, the government stipulated in the plea agreement that

the defendant had accepted responsibility for his actions, but at

sentencing, the government argued that the defendant had not

truly accepted responsibility.   Id. at 760-61.   We rejected the

government’s argument on appeal that the breach of the plea

agreement was harmless:

          The interest of justice and standards of good
     faith in negotiating plea bargains require reversal
     where a plea bargain is breached. Santobello v. New
     York, 404 U.S. at 262-63, 92 S. Ct. at 498-99. A
     lesser standard would permit the government to make a
     plea bargain attractive to a defendant, subsequently
     violate the agreement and then argue harmless error,
     thereby defrauding the defendant.

Id. at 761.   Because we have determined that the government

breached the plea agreement, we vacate Townley’s sentence and

remand for resentencing before a different judge, as required by

Valencia.

                3.   errors in sentence calculation

     Townley challenges the district court’s calculation of his

offense level, the district court’s reasons for departing from

the Sentencing Guidelines, and the extent of the departure.     None




                                 7
of these arguments are cognizable in a § 2255 action.     See

Faubion, 19 F.3d at 232-33.

                          B.   Rule 35 motion

     Townley filed a motion under Rule 35 of the Federal Rules of

Criminal Procedure, seeking a reduction of his sentence for

“substantial assistance in the investigation or prosecution of

another person who has committed an offense.”     FED. R. CRIM. P.

35(b).    The district court denied Townley’s motion because a

reduction under Rule 35 can be granted only “on motion of the

Government.”    Id.   The government filed no such motion and is

under no duty to do so absent some express agreement.     See United

States v. Aderholt, 87 F.3d 740 (5th Cir. 1996).     No such

agreement exists in this case, and thus the district court did

not err in denying Townley’s motion under Rule 35.

                           III.   CONCLUSION

     As to No. 96-30117, we AFFIRM.     As to No. 95-31026, we

VACATE Townley’s sentence and REMAND for resentencing before a

different judge on the basis that the government breached the

plea agreement.    As to all other issues in No. 95-31026, we

AFFIRM.




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