                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 05-16310                ELEVENTH CIRCUIT
                           Non-Argument Calendar              MARCH 28, 2006
                         ________________________           THOMAS K. KAHN
                                                                 CLERK
                    D. C. Docket No. 05-00409-CR-BBM-1

UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,

                                     versus

JOHN MICHAEL LEDBETTER,
                                        Defendant-Appellant.
                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                               (March 28, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

      John Michael Ledbetter appeals his 24-month sentence for transmitting a

threatening communication in interstate commerce, in violation of 18 U.S.C.

§875(c). He alleges that the government breached his plea agreement by

recommending a 6-level enhancement, rather than a 3-level enhancement, pursuant
to U.S. Sentencing Guidelines Manual §3A1.2. We agree, and vacate his

sentence.

      Ledbetter negotiated a written plea agreement with the government in which

the government agreed to dismiss some charges in exchange for his agreement to

plead guilty to sending a threatening communication. Ledbetter admitted at his

Rule 11 plea colloquy that the government could prove that while he was in a

federal prison in Florida, he called his daughter in Georgia and threatened to

assault his probation officer. The plea agreement included the government’s

promise to recommend at sentencing that Ledbetter receive a 3-level enhancement

under the 2004 version of U.S. Sentencing Guidelines Manual §3A1.2(a) because

the probation officer was an “official victim . . . and . . . the offense of conviction

was motivated such status” . But the Presentence Investigation Report (PSI)

instead suggests a 6-level enhancement pursuant to U.S. Sentencing Guidelines

Manual §3A1.2(b) because the victim was a government officer, the offense was

motivated by such status, and Ledbetter’s base offense level was from Chapter 2,

Part A. The case proceeded to sentencing where the government contended that

the plea agreement was “internally inconsistent” because it required application of

the 2004 guidelines but applied them incorrectly by not including the 6-level




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enhancement under §3A1.2(b).1 The district court then rejected Ledbetter’s

argument that the government had breached the plea agreement by not

recommending a 3-level enhancement under §3A1.2(a), found that the plea

agreement’s recommendations did not bind the court, and found that, pursuant to

18 U.S.C. §3553, a guidelines sentence would be reasonable.

       We review de novo to a determination of whether the government has

breached a plea agreement. United States v. Mahique, 150 F.3d 1330, 1332 (11th

Cir. 1998) (per curiam). A material promise by the government, which induces the

defendant to plead guilty, binds the government to that promise. Santobello v.

New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971). When

a plea rests in any significant portion on the government’s promise or agreement,

so that it becomes part of the inducement or consideration, such promise must be

fulfilled. Id.




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          Under the 2003 guidelines, §3A1.2 only allowed for a 3-level increase, not a 6-level
increase. U.S. Sentencing Guidelines Manual §3A1.2 (2003). Section 3A1.2(a) of the 2004
guidelines increases a defendant’s offense level by 3 if the victim was a government officer and
the offense was motivated by that status, while §3A1.2(b) increases the offense level by 6 if the
victim was a government officer, the offense was motivated by that status, and the defendant’s
base offense level is from Chapter 2, Part A, which Ledbetter’s offense was. U.S. Sentencing
Guidelines Manual §3A1.2(a), (b). Because §3A1.2 states that the greatest of subsections (a),
(b), or (c) should be applied, application of §3A1.2(b) necessarily would preclude application of
§3A1.2(a). See U.S. Sentencing Guidelines Manual §3A1.2.

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      We have also held that whether the district court considered or was

influenced by the government’s position on the sentencing issue is not relevant.

United States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998) (per curiam). In

Johnson, we held that, despite the fact that the sentencing court is not bound by

the parties’s agreements or recommendations, when analyzing an alleged violation

of a plea agreement, we need not “address the district court’s exercise of discretion

in imposing a sentence. Rather, we focus on the government’s violation of its plea

agreement.” Id. (emphasis omitted) (quoting United States v. Tobon-Hernandez,

845 F.2d 277, 280 (11th Cir. 1988)).

      When the government’s breach of an agreement has been established, we

may either order specific performance of the agreement by means of resentencing

before a different judge or allow withdrawal of the plea. Santobello, 404 U.S. at

262-63, 92 S. Ct. at 499. Although the chosen remedy is within the court’s

discretion we have not favored withdrawal of the guilty plea especially when it is

clear that the plea was knowingly and voluntarily entered. Johnson, 132 F.3d at

631 (citations omitted).

      In United States v. Taylor, 77 F.3d 368 (11th Cir. 1996), we held that the

government breaches a plea agreement when it “unequivocally promise[s]” that it

would make a particular sentencing recommendation, and then advocates a

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position incompatible with the fulfillment of that promise. Id. at 370-71. See also

United States v. Thompson, 403 F.3d 1037 (8th Cir. 2005). We stated in Taylor:

             [i]t is in the best interest of the government, as well as
             the system as a whole, that defendants be able to count
             on the government keeping the promises it makes in
             order to secure guilty pleas. Those broader interests as
             well as each individual defendant’s interest in receiving
             the benefit of his bargain, require that courts stand ready
             and willing to hold the government to its promises.

Id. at 372. While Taylor dealt with a sentencing recommendation based on a

factual stipulation, and this case deals with a sentencing recommendation based on

a guidelines calculation, Taylor still provides us with persuasive guidance. The

government in Ledbetter’s case promised in the plea agreement to specifically

recommend that Ledbetter receive a 3-level enhancement under §3A1.2(a) for an

“official victim” but later adopted the PSI’S recommendation of §3A1.2(b)’s 6-

level increase that resulted in a greater sentence. Thus, as in Taylor, the

government unequivocally promised that it would make a particular

recommendation and breached that promise by taking a position incompatible with

the promise. As in Taylor, it was reasonable for Ledbetter to understand that the

government’s promise to make that recommendation included a promise not to

adopt an inconsistent position, especially in light of Fed. R. Crim. P. 11, which




                                          5
authorizes the government to make a guideline calculation as part of a plea

agreement. See Fed. R. Crim. P. 11(c)(1)(B).

      Because (1) the government took a position that was incompatible with its

promise and Ledbetter’s plea agreement to recommend a 3-level enhancement

pursuant to §3A1.2(a) and (2), it was reasonable for Ledbetter to understand that

the government’s promise to make that recommendation included a promise not to

adopt an inconsistent position, the government breached the plea agreement.

Accordingly, we vacate Ledbetter’s sentence and remand for re-sentencing,

holding the government to its obligation in the plea agreement. Since the

voluntariness of Ledbetter’s guilty plea is not at issue, we find no basis to allow

him to withdraw his plea and proceed to trial. Given the Supreme Court’s

guidance in Santobello, we remand for resentencing before a different judge.

      VACATED AND REMANDED.




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