UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4528

JOSE FRANCISCO NOESI,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-96-138-BR)

Submitted: October 8, 1999

Decided: November 10, 1999

Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert H. Hale, Jr., Raleigh, North Carolina, for Appellant. Jancie
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Jane J. Jackson, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Jose Francisco Noesi appeals his conviction and sentence after
pleading guilty to conspiracy to distribute and distribution of cocaine
and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994). On
appeal, Noesi argues that Government breached the plea agreement
by failing to address the court at sentencing regarding the extent of
his cooperation with the Government.*

In his plea agreement, Noesi agreed that he would fully cooperate
and disclose all conduct relevant to the charged crimes and any other
crimes that he knew about. The Government agreed:

          That it will make known to the Court at sentencing the full
          extent of the Defendant's cooperation, including whether the
          Government deems the Defendant to have substantially
          assisted authorities, or to have fulfilled his obligation under
          U.S.S.G. § 5C1.2, but the Government is not promising to
          move for departure pursuant to 18 U.S.C. § 3553(e) or
          U.S.S.G. § 5K1.1.

(JA 17-18).

The presentence report (PSR) reflected the fact that according to
government agents, Noesi was debriefed and gave complete informa-
tion concerning his conduct and appeared remorseful for his actions.
However, the Government did not make a clear statement regarding
the extent of Noesi's cooperation and whether it was substantial at the
_________________________________________________________________
*Although Noesi agreed to a waiver of his appeal rights, the Govern-
ment concedes that the waiver does not bar an appeal if the government
breaches the plea agreement. See United States v. Rosa, 123 F.3d 94, 98
(2d Cir. 1997); United States v. Craig, 985 F.2d 175 (4th Cir. 1993).

                    2
sentencing hearing. Noesi contends that the Government's failure to
make any affirmative representations regarding his assistance or to
announce to the court whether it deemed his assistance to be substan-
tial breached the plea agreement.

When the defendant raises an issue concerning a breach of the plea
agreement for the first time on appeal, the breach is reviewed under
a plain error standard. See United States v. McQueen, 108 F.3d 64,
65-66 (4th Cir. 1997). Under this analysis, Noesi bears the burden of
demonstrating that there was an error, the error was plain, and the
plain error affected his substantial rights. See United States v.
Hastings, 134 F.3d 235, 239-40 (4th Cir.), cert. denied , ___ U.S. ___,
66 U.S.L.W. 3758 (U.S. May 26, 1998) (No. 97-8732). Specifically,
he must show that the error prejudiced him to the extent that it
affected the outcome of the proceedings. See United States v. Lewis,
10 F.3d 1086, 1092 (4th Cir. 1993). Finally, "[w]hen reviewing a
breached plea agreement for plain error . . . we must establish whether
the breach was so obvious and substantial that failure to notice and
correct it affect[ed] the fairness, integrity or public reputation of the
judicial proceedings." McQueen, 108 F.3d at 66 (internal quotation
omitted).

The Government contends that it substantially complied with the
terms of the plea agreement because the prosecutor's refusal to move
for a § 5K1.1 downward departure was an implicit statement that the
Government did not deem Noesi's assistance as substantial. The Gov-
ernment also asserts that its obligation was fulfilled by counsel's
statement that he recognized that the Government was not going to
file a § 5K1.1 motion. We find that the Government's refusal to file
a § 5K1.1 motion is not the same as deeming that Noesi did not pro-
vide substantial assistance. The prosecutor's declaration that he did
not intend to make the motion does not necessarily imply that the
Government deemed that Noesi's assistance was not substantial. As
this court has stated, "the government promised to `deem,' one way
or the other. It must keep this promise." United States v. Dixon, 998
F.2d 228, 230 (4th Cir. 1993). Even if the Government had deter-
mined that Noesi's assistance was not substantial, it was still required
to inform the court of the extent of his cooperation. We find that this
falls short of the performance for which Noesi bargained. Accord-
ingly, we find there was plain error.

                    3
The court must next decide whether the breach affected the out-
come of the proceedings. See Lewis, 10 F.3d at 1092. Noesi contends
that, had the Government informed the court of the extent of his assis-
tance, he might have been sentenced at the lower end of the sentenc-
ing guidelines range, instead of at the middle range.

There is no way of knowing whether Noesi's sentence would have
been reduced if the court was informed of the full extent of his coop-
eration. We find that Noesi's argument that the breach may have had
an effect on his sentence within the guidelines' range is persuasive.
Because Noesi was sentenced at the middle of the sentencing guide-
lines range, the Government's breach may have affected the outcome
of the proceedings. Despite the lack of a § 5K1.1 motion, the court
has the authority to consider a defendant's assistance when determin-
ing a sentence within a range. See USSG§ 1B1.4 (in determining sen-
tence within range, "court may consider, without limitation, any
information concerning the background, character and conduct of the
defendant"); United States v. Doe, 934 F.2d 353, 357 (D.C. Cir. 1991)
("holding that a court may always consider a defendant's assistance
in selecting a sentence from within the guideline range") (emphasis
in original). Thus, we find that Noesi was substantially prejudiced by
the Government's breach.

Since it appears that Noesi provided some assistance, the Govern-
ment's failure to unambiguously inform the court as to the full extent
of Noesi's assistance violated the plea agreement. Equally violative
of the plea agreement is the prosecutor's failure to deem whether
Noesi's assistance was substantial. "[B]ecause violations of plea
agreements on the part of the government serve not only to violate the
constitutional rights of the defendant, but directly involve the honor
of the government, public confidence in the fair administration of jus-
tice, and the effective administration of justice in a federal scheme of
government," we find that the Government's breach constituted plain
error and entitles Noesi to relief. McQueen, 108 F.3d at 66 (internal
quotation omitted).

We therefore vacate the sentence and remand the case for resen-
tencing with instructions for the Government to satisfy its obligations
under the plea agreement. The case should be remanded to a different
district court judge for resentencing. See United States v. Peglera, 33

                    4
F.3d 412, 415 (4th Cir. 1994). 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.

VACATED AND REMANDED

                    5
