                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 31 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-1235
 v.
                                                  (D.C. No. 97-CR-286-D)
                                                        (Colorado)
 ISMAEL RODRIGUEZ-LIRA, also
 known as Alfredo Garcia,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Ismael Rodriguez-Lira entered a guilty plea to illegally entering

the United States after having been arrested and deported subsequent to an

aggravated felony conviction. He contends on appeal that he should be able to

withdraw his guilty plea or be resentenced because the district court improperly

calculated his sentencing offense level and the prosecutor failed to honor the plea

agreement not to oppose a downward departure. We deny the withdrawal of the

guilty plea but remand for resentencing based on the prosecutor’s conceded

failure to honor the spirit of the plea agreement.

      On September 7, 1996, after serving a federal sentence for a drug related

offense and then a state sentence for an aggravated felony of assault, Mr.

Rodriguez-Lira was deported to his country of citzenship, Mexico. He

subsequently returned to the United States and was charged with illegal re-entry,

to which he pled guilty. In exchange for the plea, the government agreed not to

oppose a two point downward departure and to recommend a sentence at the low

end of the guideline range. At sentencing, Mr. Rodriguez-Lira unexpectedly

argued for a four point reduction in consideration of exceptional family hardship.

The prosecutor responded by stating,

      [m]y understanding of the law as far as downward departures is that a
      downward departure may be authorized when the defendant’s situation is
      out of . . . the heartland of cases. . . . [I]t is not out of the heartland when
      someone is convicted to be deported and for the remainder of the family to
      suffer as a result. . . . So that therefore I don’t think the fact that he had a
      family takes it out of the heartland. . . .

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           [He did not try] to do the right thing. . . . He never said I have an
      emergency, my children are at grave risk because of their mother, please,
      Mr. United States consul, let me back in. He just came in. . . .”

Aplt. App. at 136-37. In the same breath, the prosecutor reiterated that he would

honor the plea agreement not to oppose a two point downward departure.

      The government concedes on appeal that the prosecutor’s statements

violated the spirit of the plea agreement and recommends a resentencing before a

different judge. Mr. Rodriguez-Lira asks in the alternative to withdraw his plea

agreement.

      We review de novo whether government conduct has violated a plea

agreement. See United States v. Hawley, 93 F.3d 682, 692 (10th Cir. 1996). The

principles of contract law govern plea agreements. See id.; United States v.

Cooper, 70 F.3d 563, 565 (10th Cir. 1995). We enforce plea agreements to

preserve the integrity of the plea and the integrity of the government, with the

pragmatic benefit of encouraging future pleas. See United States v. Brye, 146

F.3d 1207, 1209 (10th Cir. 1998); Cooper, 70 F.3d at 567. As such, while we

hope the government prosecutorial conduct observes an ethical standard, we

require it to comply with the law. Cooper, 70 F.3d at 567.

      Since the government has conceded and we agree that the implications of

the prosecutor’s statements undermine the promise not to oppose a downward

departure, the only question is whether the breach warrants a withdrawal of the


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guilty plea. “When the government has breached a plea agreement, it is generally

preferable to remand the case to the district court for its determination as to

whether defendant should be resentenced by a different judge or should be

allowed to withdraw his guilty plea.” Brye, 146 F.3d at 1213. In a more nuanced

approach, we have restricted a remand to resentencing when the government’s

breach is neither egregious nor intentional. See id. at 1213; cf. Hawley, 93 F.3d

at 694.

      In the instant case, the record indicates the prosecutor’s remarks fall short

of the violation in Cooper, where we allowed the defendant to withdraw his plea

because the prosecutor’s remarks placed the defendant in a sentencing range that

made the plea agreement recommendation impossible and illegal for the court to

honor. See 70 F.3d at 564-65. The situation was exacerabated there by the

prosecutor’s failure to actually make the promised recommendation. See id. at

567. By contrast, the prosecutor’s comments here did not entirely vitiate the plea

agreement. The comments were far less detrimental and he reiterated several

times the promise that he would not oppose a two point downward departure.

      Indeed, the prosecutor “crossed the proverbial ‘line,’” Brye, 146 F.3d at

1213, in a manner more similar to Brye than Cooper. In Brye, the prosecutor

agreed not to oppose a downward departure for duress, but then proceeded to

emphasize the lack of duress. See id. (suggesting the fight in question was “a


                                          -4-
case of mutual combatants” rather than duress). We remanded only for

resentencing by a different judge, holding that the breach was not sufficiently

egregious or intentional to warrant a plea withdrawal. Similarly, the prosecutor’s

remarks here, while inappropriate, were ambiguous as to severity and bad faith

intent. Indeed, the remarks may have amounted to merely challenging the two

additional points of downward departure that Mr. Rodriguez-Lira unexpectedly

requested and that were beyond the scope of the plea agreement. Accordingly, we

reverse Mr. Rodriguez-Lira’s sentence and remand for resentencing by a different

judge.

         All other sentencing issues raised by Mr. Rodriguez-Lira are subsumed by

this holding. On resentencing, he may raise with the new sentencing judge all

issues he could have raised in his original sentencing hearing. See United States

v. Ortiz, 25 F.3d 934, 935 (10th Cir. 1994);see also United States v. Webb, 98

F.3d 585, 587 (10th Cir. 1996).


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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