                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 02-20175



     UNITED STATES OF AMERICA,


                                             Plaintiff-Appellee,


            versus


     ANTHONY RAY CARTER,

                                             Defendant-Appellant,


                       _______________________
            Appeal from the United States District Court
                 for the Southern District of Texas
                             (01-CR-396)

                           January 7, 2003


Before GARWOOD, JONES, and STEWART, Circuit Judges.*

GARWOOD, Circuit Judge:

     Defendant-appellant Anthony Ray Carter (Carter) appeals his

sentence.    We vacate and remand for resentencing.

                     Facts and Proceedings Below

     Carter appeals his sentence following his guilty plea to



     *
      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opinion should not be published and is not precedent except under the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.
engaging in a consensual sexual act with a female inmate under his

custody, supervision, and disciplinary authority as a Federal

Bureau of Prisons correctional officer at the Federal Detention

Center in Houston, Texas, in violation of 18 U.S.C. § 2243(b).

     In a July 13, 2001 plea agreement, Carter waived his right to

trial, judgment and sentencing before a United States District

Judge, and consented to trial before a United States Magistrate

Judge.    The offense to which Carter pled guilty was a class A

misdemeanor, which carried a range of imprisonment not to exceed

one year.    In the plea agreement, “the United States agrees . . .

to remain mute at sentencing regarding any sentence which the

United States may deem appropriate.”

     The Probation Officer calculated the Sentencing Guideline

range at a base offensive level 9 under USSG §2A3.3, plus a two

level increase for submitting a materially false written statement

in the form of a sworn affidavit under USSG §3C1.1, less a two

level    reduction     for   acceptance   of   responsibility   under   USSG

§3E1.1(a).    Carter had no previous arrests or convictions and his

criminal history category was scored at level I, which placed him

in a sentencing range of four to ten months and, as the Presentence

Report (PSR) reflected, he was eligible for probation.             The PSR

noted that there was no basis for departure from the guidelines.

Neither the government nor Carter filed any objection to the PSR.

Carter,     however,     filed   a   sentencing    memorandum   requesting

                                      2
probation, supported by a letter from his wife.1             At the sentencing

hearing, Carter urged the Magistrate Judge to grant him probation.

The Magistrate    judge   adopted     the       PSR.   The   Magistrate   Judge

declined to grant probation and sentenced Carter to six months’

imprisonment, with the condition that he participate in a mental

health program during imprisonment, one year supervised release, a

$1,000 fine, and a $25 special assessment.

     The Probation Office had received a letter from the Warden at

the Houston prison facility where Carter was employed and where the

conduct at issue occurred.      The letter is on official letterhead

carrying at its top the printed legend “U.S. Department of Justice”

and just beneath that “Federal Bureau of Prisons.”                  Following a

discussion of the negative consequences of staff-inmate sexual

relationships, the Warden’s letter stated, “When a conviction is

secured, a sentence of imprisonment is critical if the prosecution

is to deter future crimes” and “It is my hope that the sentence

imposed will include a period of imprisonment.”                A copy of this

letter was sent by the Warden to the U.S. Attorney several months

prior to sentencing but was not sent (nor shown as sent) to Carter

or his counsel.   The probation officer furnished the letter to the

Magistrate Judge, but not to Carter or his counsel.               The PSR quoted

portions   of   the   letter,   but       not    the   portions    recommending

     1
      The PSR had noted that the wife had filed for divorce and was not
supportive of the defendant; in the subsequent letter attached to the
defense motion, the wife requested a probated sentence and wrote very
supportively of the defendant.

                                      3
incarceration.    The PSR introduced its quote from the letter by

stating,   “The   warden's   words,       without   revealing   the   type   of

sentence he advocates in this case, are as follows.”              Carter and

his counsel were unaware that the Warden had made any sentencing

recommendation.

     At the sentencing hearing, the Magistrate Judge, following

defense counsel’s request for probation, stated:

     “But the Court must consider whether or not it’s
     appropriate to place you on probation or to order a
     period of incarceration back to the Bureau of Prisons who
     has indicated in – to probation in a document that you
     should be incarcerated.” (emphasis added)2

     Carter's attorney then objected, stating that he had not seen

the document to which the Magistrate referred, that the PSR did not

indicate that the Warden’s letter had taken any position regarding

sentencing, and that any such statement would constitute a breach

of the plea agreement.

     Defense counsel then asked to be shown a copy of the letter;

the letter was furnished to him and a brief recess was taken.

Following the recess defense counsel reiterated his objection that

submission to the Magistrate Judge of the portions of the Warden’s

letter recommending a sentence of imprisonment constituted a breach

of the plea agreement’s provision that the United States would

remain mute at sentencing regarding any sentence which the United



     2
      The prosecutor had earlier called the court’s attention to the
fact that the Warden was in the courtroom.

                                      4
States may deem appropriate. Defense counsel also called attention

to the fact that the statement in the letter that “[w]hen a

conviction is secured, sentence of imprisonment is critical if the

prosecution is to deter future crimes” was highlighted.3      Defense

counsel then stated “I would ask the Court to reconsider its

decision of imprisonment . . . you can impose up to five years

probation . . . I would withdraw the objection if that is done.”

     The prosecutor responded by stating:

     “Your Honor, the United States did not direct that
     letter. The United States stands by its plea agreement.
     And I am here on behalf of the United States to represent
     to the Court that we are not recommending any appropriate
     sentence because we agreed to remain mute.”

     The Magistrate Judge declined to grant probation, and imposed

a six month term of imprisonment, followed by a one year term of

supervised release, and a $1,000 fine, observing that the probation

officer had recommended ten months’ imprisonment.     The Magistrate

Judge also remarked:

     “I’m not giving a whole lot of credence to what the
     Bureau of Prisons says. Because you’re right, the United
     States agreed to stand mute in this case. Except from
     that, this letter aside can be considered as null and
     void as far as I’m concerned.       I’m looking at the
     recommendations that have been made to me by the
     probation department.”


     3
      The Magistrate Judge later–in a bond hearing a few weeks after
sentencing–observed that he personally had highlighted these remarks,
stating “Those highlights are mine. . . . I highlight things I want to
focus on because of vision obscurity.” (emphasis added).
     The Magistrate Judge granted Carter bond pending appeal, noting
that the breach of plea agreement issue was “an issue where reasonable
jurists could differ.”

                                  5
Likewise at the post-sentence bond hearing, the Magistrate Judge

observed respecting the Warden’s letter “whatever he says, has no

impact on my thinking.”

     Carter appealed to the district court, asserting that the

Warden's letter recommending a prison term breached the plea

agreement’s provision that the United States would take no position

regarding the appropriate sentence.      The District Court determined

the letter violated the plea agreement because, although the U.S.

Attorney's Office and Bureau of Prisons are separate entities, they

both represent the singular government of the United States.

However, the District Court concluded that the breach was harmless

error under   FED. R. CRIM. P. 52 because the Magistrate Judge
stated that he had disregarded the letter and based the sentence on

his own analysis of the facts.         Pursuant to these findings, on

February 12, 2002, the District Court entered an order affirming

Carter's sentence.    On February 13, 2002, Carter filed a timely

notice of appeal to this court.4

                              Discussion

     The Government does not expressly challenge the district

court’s determination that challenged portions of the Warden’s

letter breached the plea agreement.        The only issue mentioned by

the United States in its brief is “[w]hether the District Court



     4
      We have jurisdiction of the appeal under 28 U.S.C. § 1291. United
States v. Garrett, 984 F.2d 1402, 1405 (5th Cir. 1993).

                                   6
correctly found that the United States’ breach of a plea agreement

was harmless error,” its brief states that “the United states did

not appeal the District Court’s finding that a breach occurred,”

and its brief concludes by stating that “the opinion issued by

District Court on appeal from the judgment of conviction and

sentence entered by the Magistrate Judge should be affirmed in

their entirety.”5   Accordingly, we proceed on the assumption that

the government did breach the plea agreement.    That is not a wholly

unreasonable assumption, as the Bureau of Prisons is a part of the

Department of Justice6 and to determine “whether the plea agreement

has been breached, we inquire whether the government’s conduct ‘is

consistent with the defendant’s reasonable understanding of the

agreement.’” United States v. Reeves, 255 F.3d 208, 210 (5th Cir.

2001).   Accord: United States v. Saling, 205 F.3d 764, 766 (5th

Cir. 2000); United States v. Carter, 185 F.3d 298, 304 (5th Cir.



     5
      We also note that the plea agreement contained a waiver of appeal
(none of the exceptions to which are applicable). The government has
not invoked the agreement’s waiver of appeal in this court, which is
consistent with its failure to challenge the district court’s
determination that it breached the plea agreement. The government’s
breach of a plea agreement precludes its invocation of a provision
therein by which the defendant waives appeal rights, regardless of
whether the government’s breach resulted in prejudice to the defendant.
See United States v. Keresztury, 293 F.3d 750, 755-57 (5th Cir. 2002).

     6
      We note, however, that the plea agreement states that it “binds
only the United States Attorney’s Office for the Southern District of
Texas and the defendant. It does not bind any other United States
Attorney.” Neither the government’s brief nor Carter’s cites this
provision of the plea agreement.

                                   7
1999); United States v. Valencia, 985 F.2d 758, 761 (5th Cir.

1993).

     Turning to the issue of harmless error, we note that when the

government breaches a plea agreement the defendant has the option

to either withdraw his plea, in which case the government is no

longer bound by the agreement, or to enforce specific performance

by having resentencing before another judge.       Saling, 205 F.3d at

767-68 (5th Cir. 2000); United States v. Palomo, 998 F.2d 253, 256

(5th Cir. 1993).     See also Santabello v. New York, 92 S.Ct. 495,

499 (1971); Valencia at 761.     Here the defendant has consistently

sought specific performance and the government has never urged that

withdrawal of the plea is the only appropriate relief to which the

defendant would be entitled.

     The district court concluded resentencing was inappropriate

and the breach of the plea agreement was harmless because the

Magistrate Judge “stated that he was basing the sentence on his own

analysis of the facts, and gave his analysis for the record” and

“was more lenient than the probation office recommended and had

individual reasons–though coincident with the Warden’s–to impose a

prison sentence.”     However, it is undisputed that the Magistrate

Judge was aware at sentencing of, and considered in connection with

deciding whether to impose imprisonment or probation, the Warden’s

recommendation     that   imprisonment   be   imposed,   and   that   the

Magistrate Judge had highlighted the sentence in the Warden’s


                                   8
letter    requesting       a    sentence    of     imprisonment        because     it    was

something the Magistrate Judge “want[ed] to focus on.”                           Moreover,

although the Probation Officer recommended a term of imprisonment,

he did so after reading the Warden’s letter, and in any event the

Magistrate Judge ultimately decided to be more lenient than the

probation officer.             Finally, the PSR and the Magistrate Judge

correctly recognized that probation was an available option under

the guidelines and did not require a departure.

     In these circumstances, while we cast no doubt on the veracity

and good faith of the Magistrate Judge’s statements that he was

ultimately wholly uninfluenced by the Warden’s recommendation,

application     of   the       harmless    error      rule    would    be   contrary      to

Santabello v. New York, 92 S.Ct. 495 (1971), and our decisions

following    it    such    as    Valencia       and   Saling.         For   example,      in

Santobello the prosecutor, in return for the defendant’s plea, had

“agreed    to     make    no    recommendation         as    to   sentence,”       but    at

sentencing a new prosecutor recommended a one year sentence,

defense counsel          objected    that    this      was    contrary      to   the    plea

agreement but the court proceeded with sentencing stating “I am not

at all influenced by what the District Attorney says” and proceeded

to base his sentence on the facts stated in the probation officer’s

report.     Id., 92 S.Ct. at 497.               The Supreme Court held that the

breach of the plea agreement entitled the defendant to either

withdraw    his    plea    or     “be   resentenced          by   a   different    judge”


                                            9
notwithstanding its recognition that the sentencing judge had

“stated that the prosecutor’s recommendation did not influence him

and we have no reason to doubt that” and its statement “that this

is in no sense to question the fairness of the sentencing judge.”

Id., 92 S.Ct. at 499.          We are not at liberty to depart from

Santabello.7

      This is not a case where it can be objectively determined that

the breach could not have been harmful, as where the defendant

received the minimum lawful sentence, or where the guidelines

agreed to   are   not   used   but   those   employed    are   substantively

identical, United States v. Carmouche, 138 F.3d 1014, 1017 (5th

Cir. 1998), or where the information the prosecutor agreed to but

failed to furnish is furnished by the defense and confirmed by the

prosecutor at sentencing.       United States v. Hooten, 942 F.2d 878,

884 (5th Cir. 1991).

      We accordingly vacate Carter’s sentence and, as Carter has

requested, remand the cause for resentencing before another judge

(or magistrate judge), and further direct that a new PSR (omitting

any   reference   to    the    Warden’s      letter)    and    new   sentence

recommendation be prepared by a different probation officer and

that no consideration be given at any stage to the Warden’s letter

or previous probation department sentence recommendation.


      7
      That the resentencing must be before a different judge is likewise
clear from, for example, Valencia and Saling.

                                     10
SENTENCE VACATED and CAUSE REMANDED with

      directions for resentencing.




                   11
