UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 94-5864

LARRY BEST,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-93-258-P)

Argued: December 7, 1995

Decided: January 30, 1996

Before ERVIN, Chief Judge, and MICHAEL and
MOTZ, Circuit Judges.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Kenneth P. Andresen, Charlotte, North Carolina, for
Appellant. Robert Jack Higdon, Jr., Assistant United States Attor-
ney/Lead Attorney, Organized Crime Drug Enforcement Task Force,
Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, Charlotte, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant, Larry Best, pled guilty to conspiracy to possess with
intent to distribute, and distribute, quantities of cocaine and cocaine
base. The district court sentenced Best to 264 months in prison (22
years), and 5 years of supervised release. Best now appeals his sen-
tence, claiming that the government breached a plea agreement with
him by refusing to make a motion for a downward departure from the
Sentencing Guidelines under § 5K1.1 (substantial assistance to
authorities) and by failing to recommend a sentence between seven
and eight years. We reverse and remand for resentencing.

Best was indicted by a federal grand jury on December 8, 1993. He
subsequently expressed his desire to cooperate in the investigation
and prosecution of the charged conspiracy. On February 7, 1994, he
was debriefed as to his own involvement in the conspiracy, as well
as to the identities and activities of his co-conspirators. Best's state-
ment was reduced to writing and became part of the government's
discovery file. On May 9, 1994, the Assistant United States Attorney
assigned to Best's case wrote a letter to Best's counsel. In exchange
for Best's "straight up" guilty plea, the government offered to stipu-
late to a smaller amount of cocaine foreseeable to Best than had origi-
nally been contemplated and "[a]dditionally, if [Best] continues to
cooperate with the investigators," the government agreed "to recom-
mend a sentence of somewhere in the range of seven (7) to (8) years."

Ten days later, on May 19, 1994, Best pled guilty"straight up" to
the sole count in his indictment, and the government stipulated to the
smaller amount of cocaine foreseeable to him. Best's debriefing state-
ment was used to obtain guilty pleas from some of the co-conspirators
Best named therein. Minutes before Best's August 15, 1994 sentenc-
ing hearing, however, the government informed Best's attorney that
although it still intended to make a motion for a downward departure,

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it would recommend a sentence of 144 months (12 years), rather than
the seven to eight year range indicated in the government's May 9 let-
ter. The reason for this, the government explained, was that it antici-
pated needing additional cooperation from Best to obtain future
indictments, and planned to reward that cooperation by recommend-
ing an additional sentence reduction to the range discussed in the let-
ter through a Rule 35 motion.1

Best's counsel promptly responded that he believed the gov-
ernment's position to be a breach of the plea agreement established
by the May 9 letter. At the sentencing hearing, Best took the stand
and recanted much of what he had said in his February 7 debriefing.
Finding this testimony decidedly uncooperative, the government
determined that Best had breached the plea agreement, and thus
refused to make a § 5K1.1 motion at all. The court sentenced Best to
a term of 264 months.

As Best correctly notes, it is well-established that"when a plea
rests in any significant degree on a promise or agreement of the prose-
cutor, so that it can be said to be part of the inducement or consider-
ation, such promise must be fulfilled." Santobello v. New York, 404
U.S. 257, 262 (1971). It is clear in this case that Best's guilty plea was
induced, at least in part, by the promises contained in the govern-
ment's May 9 letter. The government fulfilled its promise as to the
stipulation to a lower amount of cocaine foreseeable to Best. Whether
the government breached a binding agreement by failing to make a
§ 5K1.1 motion and by failing to recommend a sentence in the range
of seven to eight years is the question before us.

Although we do not import principles of contract law wholesale
into the law of plea agreements, we have repeatedly recognized that
contract law may provide invaluable guidance in the plea agreement
context. See, e.g., United States v. United Medical and Surgical Sup-
_________________________________________________________________
1 At sentencing, a reduction in sentence for providing substantial assis-
tance to authorities is accomplished by a § 5K1.1 motion by the govern-
ment. After sentencing, such a reduction may be requested by a
government motion pursuant to Rule 35 of the Federal Rules of Criminal
Procedure. See generally, United States v. Martin, 25 F.3d 211, 215-216
(4th Cir. 1994) (distinguishing between the two types of motions).

                     3
ply Corp., 989 F.2d 1390, 1400-1401 (4th Cir. 1993); United States
v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986); United States v.
McIntosh, 612 F.2d 835, 837 (4th Cir. 1979). Our reliance on general
contract principles is tempered by our recognition that "the defen-
dant's underlying `contract' right is constitutionally based and there-
fore reflects concerns that differ fundamentally from and run wider
than those of commercial contract law." Harvey, 791 F.2d at 300. We
are also mindful of concerns about the public perception of the federal
judicial system. Id. In Harvey, we concluded that these concerns "re-
quire holding the Government to a greater degree of responsibility
than the defendant (or possibly than would be either of the parties to
commercial contracts) for imprecisions or ambiguities in plea agree-
ments." Id.

This case is further complicated by the fact that the district court
first found that "there was not a plea agreement." It then proceeded
to assert that Best had warned an accomplice of an impending search,
an event that indisputably occurred before Best had even been
arrested and long before the prosecutor suggested an agreement. The
record is silent as to when the investigating officers learned of this
warning or whether it was before or after the May 9 letter was written.
According to the district court, Best "in fact was impeding the gov-
ernment in its investigation by warning the one target Mr. Best had
provided the government that there would be a search of the prem-
ises." Again, there is nothing in the record to support the court's sug-
gestion that Best had provided the government with only a single
target and the government never maintained that position.

The government argues that its offer to recommend a sentence
between seven and eight years was a conditional offer, which never
ripened into a binding agreement because Best never"fully" cooper-
ated. At oral argument of this case, government counsel explained
that the May 9 letter contemplated that Best would cooperate against
all of the people he identified in his debriefing, and thus at the time
of sentencing, he had only partially cooperated, because he had not
yet cooperated against those people who had yet to be indicted or
convicted.2 The government contends that, had Best not recanted his
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2 Significantly, at oral argument the government conceded that it was
not relying on the fact that the letter referred to"continued," as opposed
to past cooperation. Best's information had apparently been useful in
obtaining guilty pleas from several defendants both before and after the
May 9 letter.

                    4
February 7 statement at the sentencing hearing, and had he cooperated
against the remaining conspirators, it would have fulfilled the agree-
ment by making a Rule 35 motion and recommending a sentence
between seven and eight years.

Even if the government had the right to proceed in this way--and
it is not at all clear that it did, see United States v. Martin, 25 F.3d
211, 216 (4th Cir. 1994)--the May 9 letter did not so provide. The
letter contains no description of what the government considers to be
"full" cooperation, nor is there any mention of the fact that the prom-
ised sentence recommendation would be accomplished partially by
motion for downward departure and partially by a Rule 35 motion.
Indeed, there is no mention at all of Rule 35.

Thus, the best that can be said for the government's May 9 letter
is that it is ambiguous as to what cooperation is expected of Best and
when and by what procedural vehicle the seven or eight year sentence
recommendation would be made. Our application of contract law
principles to the plea bargain context makes it clear that ambiguities
in plea agreements are to be construed against the government. See
Harvey, 791 F.2d at 303. Therefore, the government's promise to
reward Best's cooperation with a sentence recommendation within the
range of seven to eight years must be construed as a promise to make
a § 5K1.1 motion and to recommend that range at the time of sentenc-
ing. The government's abrupt announcement to Best's counsel shortly
before sentencing that it intended to recommend a higher sentence
constituted a breach of the agreement by the government,3 and thus
_________________________________________________________________
3 Two events, both described in the government's Response to Defen-
dant's Motion to Correct Sentence, may partially explain the govern-
ment's apparent change of heart. First, "The Court announced its
intention to sentence the defendant and others regardless of the status of
their cooperation in order to prevent any unnecessary delay." Second,
"five days before the sentencing hearing, Agent Isley indicated (to the
Assistant United States Attorney who wrote the May 9 letter) that he was
preparing to submit additional evidence to the United States Attorney's
office concerning the activities of other individuals in the hopes of
obtaining further indictments. The evidence gathered against these indi-
viduals included the statements of various defendants in the instant mat-
ter. It was concluded that the defendant's continued cooperation was
necessary."

                     5
Best's subsequent "uncooperative" testimony at the sentencing hear-
ing is of no relevance. (Once one party breaches a contract, that party
can certainly not complain of the other party's subsequent "breach.")

When the government breaches the terms of a plea agreement, the
defendant's due process rights are violated. See , e.g., Martin, 25 F.3d
at 217. In Santobello, the Supreme Court recognized that in some cir-
cumstances, the appropriate remedy for such a violation may be to
require the government's specific performance of the agreement,
while in other circumstances, the appropriate remedy is to allow the
defendant to withdraw his guilty plea. 404 U.S. at 263. Best does not
seek to withdraw his guilty plea, but instead seeks only the "benefit
of his bargain." We conclude that ordering specific performance is
indeed the appropriate remedy in this case. See United States v.
Dixon, 998 F.2d 228, 231 (4th Cir. 1993); Martin, 25 F.3d at 217.

Accordingly, this case is remanded for resentencing. This re-
sentencing is to be by a different district judge, as is required. See
United States v. Peglera, 33 F.3d 412, 415 (4th Cir. 1994); see also,
Santobello, 404 U.S. at 263; United States v. Brown, 500 F.2d 375,
378 (4th Cir. 1974). At the resentencing, the government is to make
a § 5K1.1 motion and recommend a sentence between seven and eight
years. The decision as to whether to grant the government's motion
and follow the government's sentencing recommendation, of course,
remains within the discretion of the district court.

REVERSED AND REMANDED

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