                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4757


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JESUS PEREZ-LAGUNA, a/k/a Manuel,

                  Defendant - Appellant.



                              No. 08-4758


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JESUS PEREZ-LAGUNA, a/k/a Manuel,

                  Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.      Joseph F. Anderson, Jr.,
District Judge. (3:07-cr-00468-JFA-1; 3:07-cr-01162-JFA-1)


Submitted:    October 22, 2009              Decided:   December 16, 2009


Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Mark C. Moore, Assistant United States Attorney,
Columbia,   South  Carolina;   Loretta  King,   Acting  Assistant
Attorney General, Dennis J. Dimsey, Conor B. Dugan, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Following     a    guilty           plea,       Jesus     Perez-Laguna             was

convicted of conspiracy to commit an offense against the United

States,    sex-trafficking         a       minor    for   private      financial             gain,

interstate    transport       of       a    minor    with     intent        to    engage       in

prostitution, importing and harboring an alien for the purpose

of     prostitution,    and    recruiting            a    minor      to     engage        in    a

commercial sex act, in violation of 18 U.S.C.A. §§ 2, 371, 1591,

1594(a), 2423(a) (West 2000 & Supp. 2009), and 8 U.S.C.A. § 1328

(2006).      The    district   court          sentenced      Laguna       to     170    months’

imprisonment.

            Perez-Laguna’s          counsel         filed     a     brief      pursuant         to

Anders v. California, 386 U.S. 738 (1967), concluding that no

meritorious issues for appeal exist, but questioning whether the

Government breached the plea agreement.                           Perez-Laguna asserted

in his pro se supplemental brief that the Government and the

U.S.    Probation     Office       breached         his   plea      agreement          and     the

district    court    incorrectly            determined      his     offense       level      when

calculating his Sentencing Guidelines range.                         He asks for a new

sentencing    hearing.         We          previously     denied      the        Government’s

motion to dismiss and now consider the merits of the appeal.

             The government breaches a plea agreement if a promise

that induced the plea goes unfulfilled.                      Santobello v. New York,

404 U.S. 257, 262 (1971).                  A criminal defendant who asserts the

                                               3
government breached a plea agreement bears the burden of proving

such   a   breach     by    a    preponderance           of    the   evidence.          United

States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).

             This      court      reviews          the     interpretation          of       plea

agreements de novo.             United States v. Jordan, 509 F.3d 191, 195

(4th Cir. 2007).           Interpretation of plea agreements is guided by

contract law “to ensure that each party receives the benefit of

the bargain.”        Id.     Due to the constitutional implications of a

guilty     plea,    this    court      holds       “‘the      Government    to    a   greater

degree     of      responsibility        than        the      defendant     .     .     .    for

imprecisions or ambiguities in plea agreements.’”                                Id. at 196

(quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir.

1986)).     In other words, courts should interpret ambiguities in

the agreement in the defendant’s favor.                           Harvey, 791 F.2d at

303.     Courts should apply the plain language of the agreement

and “‘not write the contracts of the parties retroactively.’”

Jordan, 509 F.3d at 195 (quoting United States v. Race, 632 F.2d

1114, 1119 (4th Cir. 1980)).

             Perez-Laguna argues here, as he did below, that the

disputed provision of the plea agreement unambiguously requires

the    Government      to       move   for     an     additional        third     level      of

reduction if he qualified for the two-level reduction in U.S.

Sentencing      Guidelines        Manual       § 3E1.1(a)         (2006).         When      the

district     court     applied         the     decrease         under     § 3E1.1(a),         it

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necessarily found that Perez-Laguna qualified for that decrease,

triggering       the   Government’s          duty       to       move    for     the    additional

decrease permitted by § 3E1.1(b).                            The Government argues that

the plea agreement required it to move for a third level of

reduction only if Perez-Laguna “readily” demonstrated acceptance

of   responsibility,          and    that       one      can      interpret       the     contract

another    way    only      by     taking       its    terms       out    of     context.        The

Government asserts that Perez-Laguna did not qualify for any

decrease     under          § 3E1.1(a)          because           he     did      not     “readily

demonstrate[]      acceptance         of     responsibility              for     his    offenses,”

but the Government nonetheless “refrained from arguing against

the two-level reduction out of generosity.”                                   The Government’s

argument    is     thus      grounded       in        the    difference         in     terminology

between     the    plea       agreement’s             requirement         that       Perez-Laguna

“readily”     demonstrate           acceptance              of   responsibility          and     the

Guidelines’       standard         that     the       district          court    may    reduce    a

defendant’s       offense        level     if     he    “clearly”          demonstrates        such

acceptance.       See USSG § 3E1.1.

            The Government’s argument confirms that the disputed

provision    is,       at    best,    ambiguous.                 The     parties’       statements

during the sentencing hearing indicate that they had conflicting

understandings         of    the    provision.               Under      the     plea    bargaining

principles stated above, the provision must be construed in the



                                                  5
defendant’s favor. *         Thus, we conclude the Government breached

the plea agreement when it failed to move for a third level of

reduction     for     acceptance        of       responsibility.              See     United

States v.     Cachucha,      484    F.3d         1266,    1270     (10th       Cir.     2007)

(holding that the government breached the agreement to recommend

a   certain   Guidelines      range      apply       when    it        argued    that    the

applicable range was “way too low”); Dunn v. Colleran, 247 F.3d

450, 459-64 (3d Cir. 2001) (finding the government breached plea

agreement by requesting a “lengthy” and “considerable” term of

incarceration       rather   than   a    sentence         between       three    and    five

years as agreed, even though the defendant refused to accept

responsibility for his actions); United States v. Goings, 200

F.3d 539, 544 (8th Cir. 2000) (holding the government breached

the plea agreement by not affirmatively recommending a downward

adjustment for acceptance of responsibility).

            Where     the    government          breaches        its    plea     agreement

obligations     regarding     sentencing,           the    remedy       may     be    either

specific performance of the agreement or the opportunity for the

defendant to withdraw the guilty plea.                    Santobello, 404 U.S. at


      *
      “This does not mean that in a proper case it might not be
possible to establish by extrinsic evidence that the parties to
an ambiguously worded plea agreement actually had agreed--or
mutually manifested their assent to--an interpretation as urged
by the Government.” United States v. Harvey, 791 F.2d 294, 303
(4th Cir. 1986).



                                             6
263.     When remand for resentencing is appropriate, a different

judge should ordinarily be assigned.                            Id. (emphasizing “that

this is in no sense to question the fairness of the sentencing

judge”).

            Perez-Laguna            argues    in     his    pro    se   brief    that      the

district    court        and    U.S.    Probation        Office     breached     his      plea

agreement       by     applying     USSG     § 2A3.1       to   determine     his    offense

level,     the        Government     breached       the     plea     agreement       by    not

objecting        to     the    presentence         report’s       application       of    USSG

§ 2A3.1, and the district court incorrectly applied USSG § 2A3.1

to determine his offense level.                    We have reviewed the record and

find these contentions lacking in merit.

            Perez-Laguna has not sought to withdraw his plea and

requests remand of his case for resentencing.                           Accordingly, we

affirm    the     convictions,         vacate      the     sentence,    and     remand     for

resentencing          before    a   different       judge.         In   accordance        with

Anders, we have reviewed the record in this case and have found

no other meritorious issues for appeal.                          We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                 AFFIRMED IN PART;
                                                      VACATED AND REMANDED IN PART




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