                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4808


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MAGDALENO SANTIBANEZ-HERNANDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00018-MR-DLH-1)


Submitted:   June 11, 2013                 Decided:   July 5, 2013


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Henderson Hill, Executive Director, Ann L. Hester, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.          Anne M.
Tompkins, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Magdaleno         Santibanez-Hernandez            pled        guilty     to

unlawfully     reentering       the   United      States     after    removal   as   an

aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2006).      Santibanez-Hernandez pled guilty pursuant to an oral

plea agreement, in which the Government agreed not to oppose the

federal      sentence         running       concurrently        with       Santibanez-

Hernandez’s undischarged state sentence.                   On appeal, Santibanez-

Hernandez argues that the Government breached the plea agreement

by   initially        advocating      for       imposition     of     a    consecutive

sentence.        We   agree    and,   therefore,      vacate    the       sentence   and

remand.

            At    sentencing,      Santibanez-Hernandez’s             counsel   argued

in support of a concurrent sentence.                 When the court sought the

Government’s position on sentencing, the prosecutor responded

     that the time that [Santibanez-Hernandez] received
     from the state, as well as the time that the [c]ourt
     may impose today is warranted. It’s a situation where
     Mr. Hernandez has engaged in drug trafficking for a
     long time, has received sentences and has not learned
     his lesson.    And we do believe that there is a
     deterrent value in running his sentences consecutively
     . . . .

(J.A. 91). 1




     1
         “J.A” refers to the joint appendix filed by the parties.



                                            2
            After    Santibanez-Hernandez’s                 counsel    noted     that    the

parties had agreed during plea negotiations that the Government

would    not      oppose     a        concurrent          sentence,    the      Government

acknowledged       its     mistake.            The    court     suggested       that     the

Government may wish to strike its argument, and the Government

agreed, acknowledging that its argument was inconsistent “with

[its] earlier position in this case.”                       (J.A. 93).        The district

court proceeded to sentence Santibanez-Hernandez to a term of

fifty    months     in     prison.         Concluding          that     the     Sentencing

Guidelines     generally        favored    consecutive         sentences,       the    court

declined to direct that the federal sentence run concurrently

with    Santibanez-Hernandez’s            outstanding          state    sentence,       even

though it recognized that “ordinarily this [c]ourt would give

much credence to . . . [a plea] agreement.”                      (J.A. 96).

            Where, as here, a party raised the issue of breach in

the    district    court,       “we    review       the    district    court’s     factual

findings for clear error and its application of principles of

contract interpretation de novo.”                     United States v. Lewis, 633

F.3d    262,   267       (4th    Cir.     2011)       (internal        quotation       marks

omitted); see United States v. Diaz-Jimenez, 622 F.3d 692, 693-

94 (7th Cir. 2010) (finding defendant’s objection sufficient to

preserve issue for appeal despite failure to renew objection

after    government’s       attempt       to       cure    breach);    cf.     Puckett    v.

United States, 556 U.S. 129, 133 (2009) (applying plain-error

                                               3
standard where “at no time during [sentencing] did [defense]

counsel object that the Government was violating its obligations

under the plea agreement”).

              A plea agreement is breached when a government promise

that induces the plea goes unfulfilled.                        See Santobello v. New

York,   404    U.S.     257,    262    (1971).           By    initially       opposing     a

concurrent sentence, the Government here did not fulfill its

obligations     under    the    plea    agreement.             See    United    States     v.

Peglera, 33 F.3d 412, 414 (4th Cir. 1994).

              After    Santibanez-Hernandez’s                 counsel       informed      the

sentencing     court    of     the    Government’s        promise,       the    Government

withdrew its argument.               This is not sufficient to excuse the

Government’s failure to comply with its promise made in the plea

agreement; “resentencing is required under Santobello regardless

of the judge’s awareness of the government’s ‘real’ position as

indicated in the plea agreement.”                  Id. (citing United States v.

Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990)).                              “The Court in

Santobello     nowhere       suggested    that       a    mere       withdrawal      of   the

offending      recommendation          with       substitution         of      the   agreed

recommendation would have been a sufficient remedy.”                            Kurkculer,

918 F.2d at 302.        “To excuse plea agreement breaches in light of

later attempted mitigation would lessen the government’s duty of

strict compliance” and thereby compromise the integrity of the



                                              4
judicial system.    United States v. Alcala-Sanchez, 666 F.3d 571,

577 (9th Cir. 2012).

            Because the Government breached the plea agreement, we

grant Santibanez-Hernandez the requested specific performance,

vacate   his   sentence,   and    remand    for   resentencing      before   a

different   district   judge. 2     We     dispense   with   oral   argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.



                                                      VACATED AND REMANDED




     2
       Our direction that resentencing proceed before a different
district judge is consistent with this court’s usual practice
when a breach of a plea has occurred. See, e.g., United States
v. Dawson, 587 F.3d 640, 648 (4th Cir. 2009).        We emphasize
“that this is in no sense to question the fairness of the
sentencing judge.” Santobello, 404 U.S. at 263.



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