                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 97-10238



                    UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,


                                   VERSUS


                          JOE PAUL GALINDO,

                                                   Defendant-Appellant.




           Appeal from the United States District Court
                For the Northern District of Texas
                           (5:96-CR-61-C-1)
                          February 23, 1998


Before POLITZ,   Chief    Judge,    HIGGINBOTHAM   and   DEMOSS,   Circuit
Judges.


DEMOSS, Circuit Judge:*

      A federal grand jury indicted Joe Paul Galindo on counts of

conspiracy, possession of a firearm with an obliterated serial

number, possession of cocaine with intent to distribute, and money



  *
     Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
laundering.    In a written plea agreement, Galindo agreed to plead

guilty to all charges except conspiracy in exchange for dismissal

of the conspiracy charge and the prosecution’s agreement to request

a   sentence   reduction       for   acceptance    of    responsibility.            The

presentence report subsequently prepared for Galindo recommended an

upward   adjustment      for    obstruction       of    justice.          It    further

recommended    against     a    downward      adjustment     for       acceptance    of

responsibility      because     the    commentary       to   the       United    States

Sentencing Guidelines advises that such a reduction is ordinarily

inconsistent with an increase for obstruction of justice.                           The

prosecution endorsed the presentence report and thereby failed to

request a reduction in Galindo’s sentence.                   As a result of this

alleged breach of the plea agreement, Galindo moved to retract his

guilty plea.        The district court denied Galindo’s motion, and

instead sought to remedy the situation by allowing the government

to withdraw its earlier adoption of the presentence report.                         The

court then sentenced Galindo, allowing a two-level reduction for

acceptance     of    responsibility        and    imposing         a    sentence     of

imprisonment at the high end of the range prescribed by the

guidelines. Galindo appealed the sentence. We vacate the sentence

imposed by the district court and remand with instructions.

      This Court reviews de novo a defendant’s claim that his plea

agreement was breached.          See United States v. Laday, 56 F.3d 24,

25-26 (5th Cir. 1995).         A plea agreement has been breached if the



                                        -2-
conduct of the prosecutors is inconsistent with the defendant’s

reasonable understanding of the plea agreement.                    See United States

v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).                     In light of the

government’s           ready   endorsement   of   a    presentence     report   which

embodied recommendations inconsistent with the government’s promise

to recommend adjustment for acceptance of responsibility, it is

plain that there was indeed a breach of the plea agreement.

        The       government’s      agreement         that   the     acceptance-of-

responsibility adjustment should apply was part of the inducement

for Galindo to plead guilty, and it must therefore be fulfilled.

See Santobello v. New York, 404 U.S. 257, 262 (1971).                      Once the

government breached the plea agreement, the district court had

limited options. The two possible remedies available to remedy the

breach of a plea agreement are: (1) specific performance of the

agreement, accomplished by resentencing before another judge; or

(2) allowing the defendant to withdraw the guilty plea.                   See id. at

263.      The course taken by the district court did not remedy the

breach, and the aftermath is not susceptible to harmless-error

analysis.         See Valencia, 985 F.2d at 761.

        Because the district court failed to provide Galindo either of

the two permissible remedies for the government’s breach of the

plea agreement, we vacate Galindo’s sentence and remand the case

for further proceedings.            The district court is instructed that,

consistent with Santobello, it shall either transfer this case to


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another judge for resentencing or permit Galindo to withdraw his

guilty plea.

        VACATED and REMANDED WITH INSTRUCTIONS.




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