                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              November 5, 2008
                              No. 06-16472                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 06-20063-CR-DLG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARTIN EUGENE HABER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (November 5, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Martin Haber appeals his 63-month sentence for mail and wire
fraud charges, in violation of 18 U.S.C. §§ 1343 and 1341, respectively. Haber

pled guilty pursuant to a written plea agreement in which the government agreed to

recommend that: (1) the court reduce the offense level by three levels, based upon

Haber’s acceptance of responsibility, and impose a sentence at the low end of the

guideline range, but it would not be required to make these recommendations if

Haber, inter alia, committed any “misconduct” after entering into the agreement;

and (2) “the court impose a sentence within the advisory sentencing guidelines

range produced by application of the Sentencing Guidelines . . . [and] the court

neither depart upward nor depart downward under the Sentencing Guidelines when

determining the advisory sentencing guideline range.” The parties stipulated in the

plea agreement to a loss amount of more than $400,000, but less than $1 million,

and stipulated that Haber should receive a 4-level increase because his offense

involved more than 50 victims.

          At sentencing, the government presented two witnesses who testified that

Haber engaged in misconduct after signing the agreement, and the district court

found that Haber committed further misconduct. When the district court asked for

the parties to present matters regarding an appropriate sentence, the government

stated:

          Judge, I’ve been doing this for 15 years and I pride myself on having
          impeccable judgment . . . . I don’t think, . . . if I knew a year ago what

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      I knew today, that I would have agreed to this plea and I would have
      handled this case in the same way. I have been extremely generous to
      Mr. Haber in structuring this case. . . . I didn’t include a forfeiture
      count, which I should have. I didn’t include tax charges, which I
      should have. I didn’t include a money laundering count, which I
      should have. And today’s guideline range of 51 to 63 months is the
      spirit of the plea agreement for sure, but it woefully under[]represents
      Mr. Haber’s conduct in this case. I essentially allowed him to remain
      out on bond, where he continued to defraud the public, to continue to
      commit all sorts of financial shenanigans, to get his affairs in order, to
      make himself judgment proof, to make sure that his family was taken
      care of, and pay back those victims that he thought might cause a
      ruckus or show up and testify against him. . . . I think this guideline
      range, while it lives up to the spirit of the plea agreement, I think it’s a
      gift from God that essentially 15 years of ripping off the public, he is
      looking at 51 to 63 months.
      ...
      So we’d ask you to sentence him accordingly. We plan to live up to
      our plea agreement because if we don’t do that, then our word means
      nothing essentially, but we leave it in discretion of the [c]ourt to
      fashion an appropriate sentence.

      On appeal, Haber argues that the government breached the plea agreement

by expressing material reservations about the plea agreement, arguing for an

above-guideline sentence, recommending a sentence at the high end of the

guideline range, and arguing that he should not receive a three-level reduction for

acceptance of responsibility. Haber also argues that a miscarriage of justice

occurred when the district court sentenced him based on the stipulated loss amount

and number of victims, without making independent findings of fact, and without

proof offered by the government.



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      Whether the government breached a plea agreement is a question of law that

we review de novo. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008), petition for cert. filed, (U.S. May 15, 2008) (No. 07-11001). “The

government is bound by any material promises it makes to a defendant as part of a

plea agreement that induces the defendant to plead guilty.” United States v.

Taylor, 77 F.3d 368, 370 (11th Cir. 1996). A defendant is entitled to specific

performance of an agreement which induces his guilty plea. United States v.

Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). “Whether the government violated

the agreement is judged according to the defendant's reasonable understanding at

the time he entered his plea.” Id.

      The government “is expected to be an advocate for the sentence set forth in

the plea agreement.” United States v. Grandinetti, 564 F.2d 723, 727 (5th Cir.

1977). In Grandinetti, a government attorney who had not been a party to the plea

negotiations indicated at a hearing that he was unfamiliar with the plea agreement

and stated, after reading the agreement, that he had “very serious problems” with

the agreement’s recommendation for concurrent sentences and was “not too sure of

the legality of it nor the propriety, but none the less it is there,” and the government

was “locked-in to the language” of the agreement. Id. at 725. We vacated and

remanded, holding that the defendant did not receive the benefit of his bargain, i.e.,



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“a forceful and intelligent recommendation for concurrent sentences.” Id. at 727.

      We determine “simply whether the plea agreement has been breached or

not—irrespective of prosecutorial justifications for the failure in performance.” Id.

In Taylor, we held that, where the government advocated a sentence contrary to the

agreement, in response to the defendant’s objections to the presentence

investigation report (“PSI”), its subsequent recommendation at sentencing of a

sentence compliant with the agreement constituted “lip service” to the agreement,

which was insufficient to rectify the earlier breach. Taylor, 77 F.3d at 370-71.

Moreover, where a breach by the government is alleged, statements by the district

court that agreement-breaching representations made by the government did not

influence its decision are likewise insufficient to rectify the government’s breach.

See Santobello v. New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 499, 30 L. Ed. 2d

427 (1971) (remanding case even though the Court had “no reason to doubt” the

lower court’s statement that the prosecutor’s breaching recommendation did not

influence its decision); United States v. Johnson, 132 F.3d 628, 630 (11th Cir.

1998) (noting that, where the assertion is that the government, not the court,

violated the plea agreement, the court’s “acts are not important to this issue”). In

other words, if the government does not fulfill the agreement, the defendant is

entitled to relief, “regardless of whether the [government’s breach] had any effect



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on the sentencing judge.” Grandinetti, 564 F.2d at 726.

      Because the government breached the plea agreement by making statements

at sentencing that questioned the propriety of the plea agreement and did not make

“a forceful and intelligent recommendation for” a within-guideline sentence, see

Grandinetti, 564 F.2d at 727, we vacate Haber’s sentence and remand for

resentencing before another judge, at which both parties are to perform according

to the agreement. Accordingly, we do not address Haber’s arguments regarding

the stipulated loss amount and number of victims, as they are not ripe.

      VACATED AND REMANDED.




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