                    United States Court of Appeals,

                               Fifth Circuit.

                                No. 91–5623.

           UNITED STATES of America, Plaintiff–Appellee,

                                      v.

          Elizabeth Nichols CHAGRA, Defendant–Appellant,

                                     and

                    Jamiel Chagra, Movant–Appellant.

                               April 2, 1992.

Appeals from the United States District Court for the Western
District of Texas.

Before JOLLY and      EMILIO    M.   GARZA,      Circuit    Judges,   and   SHAW,
District Judge.*

      SHAW, Chief District Judge:

     Petitioner appeals the denial of her motion for reduction of
sentence. We affirm.

                               I. BACKGROUND

      On April 15, 1982, Elizabeth Nichols Chagra ("Mrs. Chagra"),

along with her husband Jamiel Chagra ("Jimmy"), her brother-in-law

Joe Chagra and Charles Harrelson, was indicted for conspiring to

commit first degree murder of a federal judge.                  Jimmy and Joe

Chagra were also charged with first degree murder.              On a motion by

the   Government,    Jimmy's    trial      was    severed     from    the   other

defendants;   he was acquitted on both counts.                Mrs. Chagra was

tried and convicted and sentenced to 30 years in prison.                     She

appealed her conviction.


      *
      Chief District Judge of the Western District of Louisiana,
sitting by designation.
     Pending her appeal, Mrs. Chagra's husband Jimmy entered a plea

of guilty in an unrelated matter.             The sealed plea agreement

provided in pertinent part that



     should Elizabeth Nichols Chagra properly move for a reduction
     in sentence pursuant to the provisions of Rule 35,
     Fed.R.Crim.P., if her conviction is affirmed by the United
     States Court of Appeals for the Fifth Circuit as a result of
     her now pending appeal, the United States shall recommend that
     the United States District Judge before whom said motion is
     pending reduce the total, aggregate sentence of 30 years,
     which she is presently serving in federal confinement, to a
     total, aggregate sentence of 20 years in the custody of the
     Attorney General of the United States.

     On appeal, we reversed Mrs. Chagra's conviction for conspiracy

to commit murder. United States v. Harrelson, 754 F.2d 1153, reh'g

denied, 766 F.2d 186 (5th Cir.1985), cert. denied, 474 U.S. 908,

106 S.Ct. 277, 88 L.Ed.2d 241 (1985).         We explained that since the

criminal intent of premeditation and malice aforethought is an

essential element of the underlying offense of first degree murder,

"proof of premeditation and malice aforethought is also required to

sustain   a   conviction   of    conspiracy    to   commit   first   degree

murder...."     Harrelson, 754 F.2d at 1172.           Because the trial

court's instructions allowed the jury to convict Mrs. Chagra of

conspiracy to commit first degree murder without the requisite

proof of premeditation and malice aforethought, we reversed her

conviction and remanded for a new trial.         Id. at 1174.



     Following reversal of her conviction, Mrs. Chagra was indicted

in a superseding indictment for conspiracy to commit second degree

(unpremeditated) murder.        United States v. Chagra, 807 F.2d 398,

400 (5th Cir.1986), cert. denied, 484 U.S. 832, 208 S.Ct. 106, 98
L.Ed.2d 66 (1987).       Mrs. Chagra's second trial resulted in a

conviction, and she was sentenced to 30 years in prison.         Her

second conviction was affirmed.     Chagra, 807 F.2d at 398.



     Mrs. Chagra then filed a motion under Federal Rule of Criminal
               1
Procedure 35       to reduce her sentence maintaining that the plea

agreement entered into by Jimmy entitled her to a reduction of

sentence.   When the district court denied her motion, she filed a

motion to reconsider, and Jimmy intervened, filing a motion to

specifically enforce his plea agreement.     Concluding that the plea

agreement was to benefit Mrs. Chagra only if her first conviction

was affirmed, the district court denied her Rule 35 motion, and

this appeal followed.



                            II. DISCUSSION



A. Breach of the Plea Agreement



     The Government maintains that the terms of the plea agreement

are unambiguous and that by its terms the Government was obligated

to recommend a reduction in Mrs. Chagra's sentence only if her

first conviction was affirmed as a result of her "pending appeal."

Characterizing the Government's interpretation as "hypertechnical",

Mrs. Chagra contends that she is entitled to a reduction in the


     1
      For offenses committed prior to November 1, 1987, Rule 35
permitted a defendant to move for a reduction of sentence within
120 days after the sentence was imposed. Rule 35 has
subsequently been amended.
sentence she is now serving because the Government's agreement to

reduce her sentence induced Jimmy to plead guilty.



     The existence of a plea agreement is a factual issue to which

the clearly erroneous standard of review is applied. United States

v. Williams, 809 F.2d 1072, 1079 (5th Cir.1987), cert. denied, 484

U.S. 896, 108 S.Ct. 228, 98 L.Ed.2d 187 (1987);                   United States v.

Cain, 587 F.2d 678 (5th Cir.1979), cert. denied, 440 U.S. 975, 99

S.Ct.   1543,    59   L.Ed.2d    793      (1979).     Emphasizing         that   plea

bargaining is "an essential component of the administration of

justice," Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495,

498, 30 L.Ed.2d 427, 432 (1971), the Supreme Court cautioned that

"when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of

the inducement or consideration, such promise must be fulfilled."

Santobello, 404 U.S. at 262, 92 S.Ct. at 499.



     "This    circuit      has   applied      the   principles      enunciated    in

Santobello by requiring that the government adhere strictly to the

terms and conditions of the plea agreement it negotiates with

defendants.       United    States     v.    Shanahan,     574    F.2d    1228   (5th

Cir.1978);      United     States    v.     Grandinetti,    564    F.2d    723   (5th

Cir.1977)."      United States v. Avery, 621 F.2d 214, 216 (5th

Cir.1980).      A plea agreement "must have explicit expression and

reliance and is measured by objective, not subjective, standards."

Johnson v. Beto, 466 F.2d 478, 480 (5th Cir.1972).                       Applying an

objective standard, we must "determine whether the government's
conduct is consistent with what [was] reasonably understood by

[Jimmy] when entering [his] plea of guilty."            United States v.

Huddleston, 929 F.2d 1030, 1032 (5th Cir.1991).



     In his affidavit submitted in support of Mrs. Chagra's Rule 35

motion, Jimmy stated that he pled guilty because the Government

agreed to reduce Mrs. Chagra's sentence "to a term not to exceed 20

years."    Further, he claimed that in a discussion relating to Mrs.

Chagra's    "appellate    status"   that    he   remembers    stating:     "

"[w]hatever happens at the end of everything, she [Elizabeth]

doesn't end up with more exposure than twenty years.' "



     First, we conclude that it was not reasonable for Jimmy to

have understood that the district court was required to reduce Mrs.

Chagra's sentence    to   20   years.      Although   the    Government   may

recommend a particular sentence, " "such recommendation shall not

be binding upon the court.' "       United States v. Babineau, 795 F.2d

518, 520 (5th Cir.1986) (quoting Fed.R.Crim.P. 11(e)(1)(B)).2



     Next, we find that the language of the plea agreement was

clear that "if [Mrs. Chagra's] conviction is affirmed ... as the

result of her now pending appeal, the United States shall recommend

that the ... Judge before whom said motion is pending reduce the

total, aggregate sentence of 30 years, which she is presently

     2
      Rule 11(e)(1)(B) provides in pertinent part that the
Government will "make a recommendation ... for a particular
sentence, with the understanding that such recommendation ...
shall not be binding upon the court[.]" Fed.R.Crim.P.
11(e)(1)(B).
serving in federal confinement, to a total, aggregate sentence of

20 years...." (emphasis added).            The precise language of the

agreement imposes a limitation based upon the affirmation of Mrs.

Chagra's prior conviction.       The agreement was not applicable once

her conviction was reversed.         Given the unambiguous wording of the

agreement, Jimmy could not have reasonably understood that the

Government would recommend a reduction unless Mrs. Chagra's first

conviction was affirmed.



     We   reject   Mrs.   Chagra's     argument   that   the   Government's

interpretation of the plea agreement is "hypertechnical."           Rather,

we find the Government's interpretation accurate and the only

interpretation     that   can   be   reasonably   construed.      The   plea

agreement specifically refers to Mrs. Chagra's "pending appeal" and

her "total aggregate of 30 years which she is now serving in

federal confinement...."        If Mrs. Chagra were successful in her

appeal and retried, as she was, neither the Government nor Jimmy

could predict that she would be convicted and if so, what her

sentence would be after the new trial.



     Indeed, the language of the plea agreement would not make

sense if after her new trial Mrs. Chagra had been sentenced to 21

years imprisonment, and it would have been meaningless if she had

been sentenced to 10 years imprisonment.           Moreover, Mrs. Chagra

could have bargained for her own plea agreement.          As a result, we

conclude that it was not reasonable for Jimmy to believe that the

Government would recommend a reduction in Mrs. Chagra's sentence if
her appeal was successful.



B. Violation of Due Process



     Additionally,     Mrs.         Chagra    argues       that     the     Government's

interpretation    of   the      plea     agreement         punishes        her    for   the

successful     exercise        of     her     statutory         right       to    appeal.

"[I]mposition    of    a   penalty          upon    the    defendant        for    having

successfully    pursued    a    statutory          right   of     appeal    ...    [is] a

violation of due process of law."                  North Carolina v. Pearce, 395

U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, 669 (1969).



     Upon retrial after appeal, due process is offended only in

those cases that "pose a realistic likelihood of "vindictiveness.'

"   Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40

L.Ed.2d 628, 634 (1974).            Prosecutorial vindictiveness exists "if

the prosecution acts arguably to punish the exercise of [the right

to appeal], by increasing the measure of jeopardy by bringing

additional or more severe charges, or where the judge assesses a

larger penalty upon subsequent conviction for the same offense

following an earlier reversal."               United States v. Ward, 757 F.2d

616, 619–20 (5th Cir.1985).



     No such circumstances exist here.                     The prosecutor did not

bring additional or more severe charges nor did the judge impose a

greater penalty for the same offense.                 In fact, after both trials
the judge imposed a sentence of 30 years.3          Consequently, we find

that because no prosecutorial vindictiveness existed Mrs. Chagra's

right to due process was not violated.



                              III. CONCLUSION



     We find no clear error in the district court's factual finding

that the plea agreement was to benefit Mrs. Chagra only if her

conviction   was   affirmed    by   this   court;   therefore,   the   plea

agreement    was    not   breached.          Because   no   evidence    of

unconstitutional prosecutorial vindictiveness exists, we conclude

that Mrs. Chagra's constitutional right of due process was not

violated.    The decision of the district court is AFFIRMED.




     3
      When a convicted defendant is retried after a successful
appeal, "he ... run[s] the risk ... of receiving a sentence as
severe as that previously imposed[,] and ... he ... run[s] the
risk of being tried for a separate offense" without violation of
due process. Pearce, 395 U.S. at 731, 89 S.Ct. at 2091 (Douglas
joined by Marshall, separate concurring opinion) (citations
omitted).
