UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-6300

FLOYD WARREN EDWARDS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-94-140, CA-97-330-5-F)

Argued: January 28, 2000

Decided: February 25, 2000

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Peter O'Hale, Smithfield, North Carolina; Thomas
Peter McNamara, Raleigh, North Carolina, for Appellant. Anne Mar-
garet Hayes, Assistant United States Attorney, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Jeffrey M. Cook, Smithfield, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

We must determine whether the United States breached a plea
agreement with Floyd Warren Edwards by failing to file a Rule 35(b)
motion on his behalf. Because we conclude that a breach occurred, we
vacate Edwards' sentence and remand the case for resentencing.

I.

After his arrest and indictment for conspiracy to distribute and pos-
session with intent to distribute cocaine, Floyd Warren Edwards
entered into a plea agreement with the United States. In return for
Edwards' guilty plea and his promise to cooperate in future prosecu-
tions, the United States agreed, inter alia, to "make known to the
Court at sentencing the full extent of the Defendant's cooperation,
including whether the Government deems the Defendant to have sub-
stantially assisted authorities." The agreement specifically states,
however, that "the Government is not promising to move for depar-
ture pursuant to 18 U.S.C. § 3553(e) or U.S.S.G. § 5K1.1."

Between the time of his guilty plea on February 6, 1995, and his
sentencing on July 7, 1995, Edwards provided the Government with
names of drug dealers and information about their operations, and he
agreed to testify in the case of an accused dealer who ultimately pled
guilty. At the time of sentencing, however, the Government did not
deem Edwards' assistance to have been "substantial" and therefore
did not move for a departure pursuant to U.S.S.G.§ 5K1.1. Nor did
the Government, as it had promised in the plea agreement, "make
known to the Court . . . the full extent of the Defendant's coopera-
tion"; instead the Government remained silent on this matter. The dis-
trict court sentenced Edwards to 188 months in prison, the shortest
sentence within the applicable Guidelines range.

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Edwards continued to cooperate with the Government after being
sentenced, apparently in hopes that the Government would move for
a reduction of his sentence pursuant to Fed.R.Crim.P. 35(b), which
provides: "If the Government so moves within one year after the sen-
tence is imposed, the court may reduce a sentence to reflect a defen-
dant's subsequent substantial assistance in investigating or
prosecuting another person . . . ."

In January 1996, the Government indicted three defendants, Johnny
Macon Pleasants, Fleming Macon Pleasants, and Douglas W. Pleas-
ants, based in part on information provided by Edwards. Assistant
United States Attorney Christine Dean, who had negotiated the initial
plea agreement, told Edwards at this time that if he testified truthfully
in the Pleasants' case, the Government would deem his assistance to
have been "substantial." Edwards agreed to testify, even after learning
that a funeral wreath had been left at a business run by his wife. One
of the Pleasants defendants pled guilty, a result to which Edwards'
cooperation contributed, the Government concedes. On July 8, 1996,
one day after the deadline for filing a Rule 35(b) motion had passed,
Edwards testified against a second Pleasants defendant who was ulti-
mately convicted. Apparently due to an oversight, the Government
never filed a 35(b) motion on Edwards' behalf.

Edwards petitioned the district court for resentencing pursuant to
28 U.S.C. § 2255, alleging that the Government had breached the plea
agreement, and that his sentence therefore violated his right to due
process. The Government acknowledged that it had an"implicit"
agreement with Edwards to file a 35(b) motion in exchange for his
testimony at the Pleasants' trial, and that, by not filing, it had "failed
to fulfill" this agreement. The district court reluctantly denied the
petition. Because the court could find "nothing of record here to
which the Government or the movant or the court can point to identify
a promise by the Government to reward movant for his cooperation,"
the court determined that it was "without jurisdiction to afford movant
the relief he deserves."

On Edwards' motion for reconsideration, the court found that the
Government had breached its earlier promise, contained in the written
plea agreement, to "make known to the court at sentencing the full
extent of defendant's cooperation, including whether the Government

                     3
deems the Defendant to have substantially assisted authorities." To
remedy the breach, the court ordered AUSA Dean to file an affidavit
detailing the assistance that Edwards had provided. The Dean affida-
vit states that, at Edwards' sentencing in July 1995, his cooperation
had not yet amounted to substantial assistance, but that, at the time
of the Pleasants' indictment in January 1996, "the Government told
defendant's attorney that if defendant testified truthfully, he would
have rendered substantial assistance." The prosecutor further
explained that she had inadvertently failed to file a Rule 35(b) motion.

After a third hearing on the petition, the court denied Edwards fur-
ther relief. The court still could not find evidence, in Dean's affidavit
or elsewhere, of a promise to Edwards "that she would make a Rule
35(b) motion in exchange for his subsequent substantial assistance."
Instead, it found only a statement by Dean that Edwards' testimony
at the Pleasants' trial would constitute substantial assistance. Edwards
appealed.

II.

The United States has an obligation, rooted in due process, to
adhere to the terms of its plea agreements with criminal defendants.
As we have previously observed, "a government that lives up to its
commitments is the essence of liberty under law." United States v.
Peglera, 33 F.3d 412, 414 (4th Cir. 1994). Thus,"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 v. New York, 404 U.S.
257, 262 (1971).

In determining whether a breach of the plea agreement occurred,
we are guided by principles of contract interpretation. See United
States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993). When the facts
are not in dispute, and we are called upon only to apply principles of
contract interpretation to the facts, our review is de novo. See United
States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994).

Here, the salient facts are not in dispute. Both parties agree that
they intended to be bound to additional promises, subsequent to the
plea agreement. The Government acknowledges that, after the signing

                     4
of the plea agreement, it "made further representations about its will-
ingness to evaluate Edwards' continued cooperation for the purpose
of determining whether a motion for reduction of sentence would be
filed." In early 1996, AUSA Dean told Edwards' attorney that by tes-
tifying in the Pleasants' case, Edwards would render"substantial
assistance" to the Government, the predicate condition for a reduction
of sentence motion under Rule 35(b). Dean's statement constituted an
offer to file a Rule 35(b) motion on Edwards' behalf in exchange for
his truthful testimony in the Pleasants' case--an offer that Edwards
accepted. These expressions were "tantamount to and the equivalent
of a modification of the plea agreement, albeit an oral one." Martin,
25 F.3d at 217.

We note that Edwards did not actually testify in the Pleasants' trial
until July 8, 1996, one day after the filing deadline for a Rule 35(b)
motion had passed. Arguably, then, although Edwards' willingness to
testify had apparently already contributed to the guilty plea of one of
the Pleasants defendants, and although the trial in which Edwards did
testify had begun a week earlier on July 1, Edwards' assistance to the
United States did not become fully "substantial" until his eligibility
for a Rule 35(b) motion had lapsed.

We need not resolve this issue. Although Rule 35(b) imposes a
one-year deadline on a motion by the Government for a reduction of
sentence, the Rule was amended in 1991 to remove the requirement
that the sentencing court rule on the motion within one year. The
Advisory Committee noted that this change was intended to accom-
modate "situations where the defendant's assistance could not be fully
assessed in time to make a timely motion which could be ruled upon
before one year had elapsed." Fed.R.Crim.P. 35(b) Advisory Comm.
Note to the 1991 amendment. The Advisory Committee further
observed that the change would benefit all parties, in that it would
"permit completion of the defendant's anticipated cooperation with
the government." Id.

This Note appears to speak precisely to the situation at hand. Even
if Edwards' cooperation had not become "substantial" within a year
of the imposition of his sentence, a 35(b) motion would have been
appropriate prior to this time to "permit completion" of Edwards' "an-
ticipated cooperation." The contractual obligations undertaken by the

                    5
Government included an obligation to file such a motion once the
Government realized that, due to the unpredictable progression of a
jury trial, Edwards' anticipated and already bargained-for cooperation
might not be completed within the one-year deadline. The district
court would then have had the discretion, under the 1991 Amend-
ments, to defer its decision on the motion until after Edwards had
given his testimony.

In sum, the parties orally modified the original plea agreement. By
failing to file a timely Rule 35(b) motion on Edwards' behalf, the
United States breached the modified agreement. We reach this con-
clusion solely on the basis of the facts to which the parties have stipu-
lated. We do not fault the district court for reaching the contrary
conclusion, since it appears that the Government's factual conces-
sions have become more specific and detailed on appeal.

III.

When the Government breaches a plea agreement, even if this
breach is inadvertent, the defendant is entitled to a remedy that pro-
vides the benefit of the bargain. Under the unusual circumstances of
this case, we must grant Edwards' requested relief and remand for
resentencing. As we are required to do, we remand for resentencing
by a different district judge. See Santobello , 404 U.S. at 263; Peglera,
33 F.3d at 415. At the new sentencing, the Government must satisfy
its obligations under the modified sentencing agreement.

VACATED AND REMANDED

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