                                 In the

        United States Court of Appeals
                   For the Seventh Circuit
                      ____________________
No. 12-2606
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                   v.

SALVADOR GUADALUPE NAVARRO,
                                                 Defendant-Appellant.
                      ____________________

          Appeal from the United States District Court for the
                     Southern District of Illinois.
          No. 11-CR-30046 — Michael J. Reagan, Chief Judge.
                      ____________________

 ARGUED DECEMBER 8, 2014 — DECIDED OCTOBER 27, 2015, AS
             AMENDED ON REHEARING APRIL 8, 2016
                  ____________________

   Before BAUER and HAMILTON, Circuit Judges, and ELLIS,
District Judge. *
   ELLIS, District Judge. Defendant-Appellant Salvador Gua-
dalupe Navarro (“Navarro”) pleaded guilty to and was con-


    *The Honorable Sara L. Ellis, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2                                                 No. 12-2606

victed of one count of conspiracy to possess with intent to
distribute more than five kilograms of cocaine. In the plea
agreement, the government and Navarro both agreed to re-
frain from seeking a departure from the sentencing guide-
lines and to recommend a sentence within the guidelines
range as determined by the district court. At sentencing, the
district court rejected an aggravated role enhancement under
U.S.S.G. § 3B1.1 and determined that the applicable guide-
lines range was 188 to 235 months in prison. At that point,
the government argued in favor of an upward departure
from the guidelines suggested in Application Note 2 to
U.S.S.G. § 3B1.1(b) and additionally recommended an above-
guidelines sentence of 320 months. Navarro voiced no objec-
tion, however, to this breach of the plea agreement by the
government. Indeed, the district court departed upward and
imposed a sentence of 262 months. Navarro now appeals his
sentence, arguing that the government’s breach of the plea
agreement constitutes plain error warranting resentencing.
We agree with Navarro and reverse and remand for resen-
tencing.
                     I. BACKGROUND
    On July 29, 2011, the government indicted Navarro and
22 others for their participation in a cocaine conspiracy. Na-
varro and the government entered into a written plea
agreement in which Navarro pleaded guilty to one count of
conspiracy to possess with intent to distribute more than five
kilograms of cocaine in violation of 21 U.S.C. §§ 841 and 846.
In the plea agreement, the government submitted that Na-
varro’s offense level was 37 and that based on Navarro’s
criminal history category of III, the resulting guidelines
range was 262 to 327 months in prison. Navarro did not con-
No. 12-2606                                                  3

cur with the government’s offense level calculation but
agreed that the district court would determine the offense
level, the resulting guidelines range, and the applicability of
any enhancements at sentencing.
    Despite the dispute over Navarro’s offense level, the gov-
ernment agreed “to recommend sentencing within the range
ultimately found by the Court.” Plea Agreement ¶ 3. Like-
wise, Navarro “agree[d] not to seek any sentence below the
lowest range of the advisory sentence recommended by the
guidelines after all guideline factors have been considered
by the Court.” Id. The plea agreement reiterates, in bold,
“[t]he United States and the Defendant agree not to seek a
sentence outside the applicable Guideline range.” Id. ¶ 12.
    In exchange for the government’s concessions, Navarro
also waived certain appellate rights. But Navarro retained
the right to challenge the reasonableness of the sentence if
the court imposed a sentence in excess of the applicable
guidelines range.
    At sentencing, the government called several witnesses to
testify to Navarro’s role in the conspiracy. The witnesses de-
scribed Navarro loading and delivering cocaine, counting
proceeds from cocaine sales, and using soap and perfumes
to mask the smell of the drugs. A federal agent stated that
Navarro primarily served as a drug courier, but that Navarro
took on more responsibility when the leader of the conspira-
cy, Ivan Vazquez-Gonzalez, travelled to Mexico for an ex-
tended period of time.
   Based on the witnesses’ testimony, the government ar-
gued that Navarro qualified for a three-level enhancement
pursuant to § 3B1.1(b) for managing or supervising other
4                                                 No. 12-2606

members of the conspiracy. Alternately, the government
proposed that even if the court declined to apply the
§ 3B1.1(b) enhancement, it could depart upward pursuant to
that section’s application note 2. Specifically, the government
stated:
      I would also draw the Court’s attention to ap-
      plication note 2 of that guideline, which says,
      …“An upward departure may be warranted,
      however, in the case of a defendant who did
      not organize, lead, manage, or supervise an-
      other participant, but who, nevertheless, exer-
      cised management responsibility over the
      property, assets or activities of a criminal or-
      ganization.” Now there can be no doubt, based
      upon the evidence that was presented today,
      that the description applies to Mr. Navarro.
Sent. Tr. 110:5–18. While Navarro opposed the imposition of
an enhancement or an upward departure based on his role
in the offense, he did not object on the basis that the gov-
ernment breached the plea agreement by advocating for an
upward departure.
    The district court determined that Navarro did not man-
age or supervise others, and thus refused to enhance Navar-
ro’s offense level pursuant to § 3B1.1(b). The court found that
Navarro’s adjusted offense level was 34, resulting in a guide-
lines range of 188 to 235 months in prison based on his crim-
inal history. But the court adopted the government’s alterna-
tive theory, applying an upward departure pursuant to ap-
plication note 2 of § 3B1.1 based on Navarro’s management
of the conspiracy’s property.
No. 12-2606                                                5

   After announcing these conclusions, the court allowed
the government and Navarro to recommend a specific sen-
tence. The government began by stating, “[m]y understand-
ing of the guideline range found by the Court then is 262 to
327 months. In the plea agreement, Your Honor, the United
States reserved the right to make a recommendation within
that range and we’re making a recommendation today of 320
months.” Id. at 131. Navarro did not object to this recom-
mendation as a breach of the plea agreement, and the district
court did not correct the government’s misapprehension of
the applicable guidelines range. Navarro argued for a sen-
tence “at the lower end of the guidelines,” without specify-
ing a particular number of months. Id. at 133.
    The court ultimately sentenced Navarro to 262 months in
prison, stating:
       In considering the specific characteristics of
       this offense and this wide range conspiracy, the
       very large quantity of drugs involved, the
       breadth of it, the scope of it in terms of ge-
       ographics, individuals involved and the
       amount of drugs, this defendant’s personal in-
       volvement is such that I believe this would be
       the sentence that I would impose in this case
       had I not found a three level upward departure
       was appropriate under comment 2, section 3B.
Id. at 138.
   Navarro appealed his sentence, but his counsel moved to
withdraw, believing that the appeal was frivolous. We de-
nied counsel’s Anders motion to withdraw, pointing out that
Navarro had a non-frivolous argument that the government
6                                                    No. 12-2606

breached its agreement and that the breach may have affect-
ed Navarro’s sentence. United States v. Navarro, 561 F. App’x
507 (7th Cir. 2014). The parties then briefed the substance of
Navarro’s appeal.
                          II. ANALYSIS
    Navarro contends that the government breached the plea
agreement in two ways: by advocating for an upward depar-
ture and by recommending a sentence above the applicable
guidelines range. Navarro argues that these breaches war-
rant vacating his sentence and remanding the case to the dis-
trict court for resentencing. We agree.
    Whether a plea agreement has been breached is a ques-
tion of law we review de novo. United States v. Williams, 102
F.3d 923, 927 (7th Cir. 1996). But because Navarro failed to
object both when the government argued in favor of an up-
ward departure and subsequently recommended a sentence
of 320 months, we review for plain error. United States v. Art-
ley, 489 F.3d 813, 824 (7th Cir. 2007). Under this standard,
Navarro will prevail if he can demonstrate that: (1) there was
an error; (2) the error is clear or obvious, rather than subject
to reasonable dispute; (3) the error affected Navarro’s sub-
stantial rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Puckett
v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L. Ed.
2d 266 (2009); Artley, 489 F.3d at 824; United States v. Salazar,
453 F.3d 911, 913 (7th Cir. 2006).
   The plea agreement contains at least two relevant provi-
sions. In paragraph three, “[t]he Government agree[d] to
recommend a sentence within the range ultimately found by
the Court.” Plea Agreement ¶ 3. The government explicitly
No. 12-2606                                                     7

acknowledges on appeal that it breached this provision by
recommending a sentence of 320 months and that the breach
constitutes an error for purposes of the first prong of the
plain error standard.
    Additionally, in paragraph twelve, both the government
and Navarro “agree[d] not to seek a sentence outside the
applicable Guideline range.” Id. ¶ 12 (emphasis omitted).
The government does not respond to Navarro’s argument
that it also violated this provision at sentencing. We find that
the government breached paragraph twelve of the plea
agreement by suggesting that the court depart upward from
the guidelines based on Navarro’s management over the
conspiracy’s property. The plea agreement contemplated that
the government would pursue an enhancement based on
§ 3B1.1(b). But the agreement barred the government from
seeking an upward departure, as doing so constitutes
“seek[ing] a sentence outside the applicable Guideline
range.” Id. ¶ 12; United States v. O’Neill, 437 F.3d 654, 662 (7th
Cir. 2006) (“[A]djustments and departures are distinctly dif-
ferent concepts under the Guidelines. Adjustments are
changes to an offense level within the Guidelines. Depar-
tures, on the other hand, are sentences imposed outside the
Guidelines.” (quoting United States v. Joetzki, 952 F.2d 1090,
1097 (9th Cir. 1991))).
   The government argues that the difference between an
enhancement and a departure is “very subtle,” and thus, any
error fails to satisfy the “clear or obvious” requirement of the
plain error standard. The government notes that this subtlety
was manifest by the confusion among the parties and the
court during sentencing as to the applicable guidelines
range. The government is not saved by the subtlety of the
8                                                   No. 12-2606

distinction or confusion at Navarro’s sentencing hearing.
There is no “reasonable dispute” as to whether the govern-
ment’s advocacy for an upward departure breached the plea
agreement. Puckett, 556 U.S. at 139; see, e.g., Salazar, 453 F.3d
at 914 (noting that other circuits “have concluded that un-
dercutting a sentencing recommendation may rise to the lev-
el of a breach of an agreement” (citing United States v. Vaval,
404 F.3d 144, 152–54 (2d Cir. 2005) (concluding that the gov-
ernment breached its plea agreement when it set forth an ar-
gument justifying an upward departure despite provisions
prohibiting it from doing so))).
    The guidelines themselves and the governing case law
clearly distinguish between enhancements to the guidelines
and departures from them. Specifically, § 1B1.1 of the guide-
lines requires sentencing courts to first determine the appli-
cable guidelines range, and then consider “any other policy
statements or commentary in the guidelines that might war-
rant consideration.” U.S.S.G. § 1B1.1. The Supreme Court
echoed this in Gall, instructing that, “a district court should
begin all sentencing proceedings by correctly calculating the
applicable Guidelines range.” Gall v. United States, 552 U.S.
38, 51, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). Likewise, ap-
pellate courts must first determine whether the sentencing
court committed a procedural error by improperly calculat-
ing the guidelines range, and then, only if a “district court’s
sentencing decision is procedurally sound,” should the ap-
pellate court “consider the substantive reasonableness of the
sentence imposed,” including any departures from the
guidelines. Id.
    The very text of the sentencing guidelines also makes this
distinction clear. The introductory commentary to Chapter 3,
No. 12-2606                                                 9

Part B explains that the section pertains to enhancements to
the guidelines calculation, by providing “adjustments to the
offense level.” U.S.S.G. ch. 3, pt. B, intro. cmt. Application
note 2, in contrast, describes “upward departure[s]” for
those who do not qualify for an enhancement. Id. § 3B1.1
cmt. n.2.
    We have recognized a clear distinction between adjust-
ments to the guidelines range and departures from them.
O’Neill, 437 F.3d at 662. Thus, we find that the government
clearly and obviously breached the plea agreement by advo-
cating for an upward departure and by recommending a
sentence above the guidelines range.
    The third element of the plain error standard—where the
government focuses its argument—deals with prejudice. To
satisfy this prong, Navarro must demonstrate that he proba-
bly would have received a more favorable sentence if not for
the government’s breach. United States v. James, 464 F.3d 699,
709 (7th Cir. 2006); Salazar, 453 F.3d at 913. A “defendant
whose plea agreement has been broken by the Government
will not always be able to show prejudice, either because he
obtained benefits contemplated by the deal anyway (e.g., the
sentence that the prosecutor promised to request) or because
he likely would not have obtained those benefits in any
event.” Puckett, 556 U.S. at 141–42. The government contends
that Navarro cannot meet this threshold primarily because
the district court explicitly stated at sentencing, “I believe
this would be the sentence that I would impose in this case
had I not found a three level upward departure was appro-
priate under comment 2, section 3B.” Sent. Tr. 138:9–12. The
government also seeks to downplay the importance of its
recommendation on the court’s sentence, urging that a rec-
10                                                No. 12-2606

ommendation within the guidelines on resentencing “is ex-
tremely unlikely to result in the sentencing court imposing a
different sentence.” Gov’t Br. at 10.
    However, the Supreme Court long ago recognized the
importance of the government’s recommendation on the sen-
tence imposed. See Santobello v. New York, 404 U.S. 257, 262,
92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). In Santobello, the Su-
preme Court vacated the defendant’s sentence because the
prosecutor breached a promise to refrain from recommend-
ing a specific term of imprisonment. Id. Although defense
counsel in Santobello immediately objected to the prosecu-
tor’s breach and thus properly preserved the issue for ap-
peal, we find the case instructive here.
    The sentencing judge in Santobello attempted to cure the
prosecutor’s breach by assuring defense counsel, “I am not
at all influenced by what the District Attorney says, so that
there is no need to adjourn the sentence, and there is no need
to have any testimony. It doesn’t make a particle of differ-
ence what the District Attorney says he will do, or what he
doesn’t do.” Id. at 259. Despite this assurance, the Supreme
Court reversed in “the interests of justice” and based on
“appropriate recognition of the duties of the prosecution in
relation to promises made in the negotiation of pleas of
guilty.” Id. at 262.
    Here, we are tasked with determining from the record
before us whether Navarro probably would have received a
more favorable sentence, even if only slightly more favora-
ble, had the government complied with its obligations in the
plea agreement. Unlike the unusual circumstances present in
Puckett which led the Court to conclude that Puckett was not
likely to receive the benefit contemplated in his plea agree-
No. 12-2606                                                   11

ment, i.e., the district court judge made abundantly clear on
the record that he had not heard of a defendant receiving a
departure for acceptance of responsibility when the defend-
ant had committed a new crime after pleading guilty but be-
fore sentencing, 556 U.S. at 132, here, the record reflects only
the district court’s statement that it would impose the sen-
tence regardless of finding the three-level upward departure
appropriate. Likewise, cases where we have found that the
defendant failed to prove the prejudice prong are ones in
which the record compellingly reflects the sentencing court
was not influenced by the government’s recommendation.
See United States v. Anderson, 604 F.3d 997, 1002 (7th Cir.
2010) (district court judge consciously sentenced the defend-
ant to the statutory maximum sentence in light of defend-
ant’s recalcitrance); United States v. D’Iguillont, 979 F.2d 612,
614 (7th Cir. 1992) (district court judge declined to impose
upward departure advocated by the government in violation
of the plea agreement and sentenced the defendant to a
within-guidelines sentence). In contrast, the district court’s
statement here, standing alone, does not compellingly
demonstrate that the government’s advocacy had no influ-
ence on the ultimate sentence imposed.
    Of course, requests for departures and sentencing rec-
ommendations are not binding on courts, and courts are free
to impose sentences longer than those the government re-
quests. But it appears that in this case the court was influ-
enced by the parties’ recommendations, as the sentence im-
posed was just above the midpoint between what the gov-
ernment and Navarro requested. The government’s breach of
the plea agreement focused the district court’s attention on
application note 2, with the weight of the government’s rec-
ommendation behind it. This recommendation had extra
12                                                  No. 12-2606

force because it included a specific number that was far
above the applicable guidelines range. As we suggested in
United States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010),
a case determining whether an objected-to breach merited
reversal of a sentence, the effects of a breach are particularly
hard to eliminate when the prosecutor demonstrates a
“strong commitment to a sentence” and does nothing to re-
tract the recommendation that breaches the plea agreement.
And while, of course, the judge would have been free on his
own to refer to application note 2, this remains an adversari-
al system in which parties and their counsel play essential
roles in framing the choices for the judge. The improper up-
per guidelines number offered by the government may well
have anchored the district judge to an inflated sentencing
range. We conclude that, had the government’s initial rec-
ommendation started at a lower point, Navarro likely would
have received a lower sentence. See United States v. Ingram,
721 F.3d 35, 40 (2d Cir. 2013) (Calabresi, J., concurring) (dis-
cussing how “anchoring effects” influence judgments and
noting that the court “cannot be confident that judges who
begin” at a higher guidelines range “would end up reaching
the same ‘appropriate’ sentence they would have reached” if
they started from a lower guidelines range); see also Hon.
Mark W. Bennett, Confronting Cognitive “Anchoring Effect”
and “Blind Spot” Biases in Federal Sentencing: A Modest Solution
for Reforming a Fundamental Flaw, 104 J. Crim. L. & Criminol-
ogy 489, 492 (2014) (discussing the “potential robust and
powerful anchoring effect” of the sentencing guidelines and
“the effect of the ‘bias blind spot’ in determining just sen-
tences”); Amos Tversky & Daniel Kahneman, Judgment Un-
der Uncertainty: Heuristics and Biases, 185 Science 1124, 1124
No. 12-2606                                                   13

(1974) (classic theoretical work on how framing and expecta-
tions influence judgment).
    The government could have avoided a breach by seeking
an enhancement pursuant to § 3B1.1(b), and stopping there
once the court determined that the enhancement did not ap-
ply. Then, the government could have recommended a max-
imum sentence of 235 months in prison, the high end of the
applicable sentencing guidelines range. Had the government
done so, the district court would have received recommen-
dations of 188 and 235 months. We conclude that if the dis-
trict court were faced with these recommendations, it is like-
ly that Navarro would have received a more lenient sentence
than 262 months in prison.
   After finding that the first three elements of the plain er-
ror standard are met, we have “the discretion to remedy the
error.” Puckett, 556 U.S. at 135. The Supreme Court cautions
that we should exercise that discretion “only if the error se-
riously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (alteration in original) (citation
omitted) (internal quotation marks omitted). Here, the gov-
ernment’s breach, even if inadvertent, seriously undermines
the fairness and integrity of Navarro’s sentence.
    In addition to the waivers of rights inherent in all guilty
pleas, Navarro waived his right to seek a downward depar-
ture at sentencing. Navarro’s counsel followed through on
this promise, requesting a sentence “at the lower end of the
guidelines.” Sent. Tr. 133. In exchange for his plea, Navarro
received a two-level reduction in his guidelines range for ac-
ceptance of responsibility, as well as the government’s prom-
ises to refrain from seeking an upward departure and to rec-
ommend a sentence within the guidelines range. We have
14                                                        No. 12-2606

previously recognized the importance of such promises in
enticing a defendant to plead guilty. Diaz-Jimenez, 622 F.3d at
694 (“The government’s recommendation for lenity is an im-
portant part of the consideration for a defendant’s entering a
plea of guilty[.]”).
    But the government failed to honor its promises when it
advocated for an upward departure and then recommended
a sentence more than seven years longer than the high end of
the guidelines range. “[W]hen a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that
it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Santobello, 404 U.S. at 262.
We find that reversal is appropriate because the govern-
ment’s breach seriously undermined the fairness and integri-
ty of Navarro’s sentence. On resentencing, the government is
required to strictly abide by the terms of the plea agreement.
                        III. CONCLUSION
   For the foregoing reasons, we REVERSE the judgment of
the district court and remand for resentencing. 1




     1Where the government has breached a plea agreement based on its
sentencing recommendation, our usual course is to remand for resen-
tencing before a different judge. See Diaz-Jimenez, 622 F.3d at 694 (“[A]
minimum remedy [for breach of a plea agreement] is specific perfor-
mance and resentencing by a different judge.”). We will follow our usual
course in this case as well as suggest that the government consider as-
signing this case to a different prosecutor to avoid any appearance of
unfairness in the sentencing process moving forward.
