               Case: 15-12640       Date Filed: 08/26/2016      Page: 1 of 21


                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-12640
                              ________________________

                       D.C. Docket No. 9:14-cr-80209-DTKH-1



UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                         versus

JACOBI TAVARES HUNTER,

                                                                      Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (August 26, 2016)


Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, ∗ District
Judge.

       ∗
        Honorable William T. Moore, United States District Judge for the Southern District of
Georgia, sitting by designation.
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WILSON, Circuit Judge:

      Jacobi Hunter appeals his 60-month sentence, imposed after he pleaded

guilty to drug-related charges pursuant to a written plea agreement. On appeal,

Hunter contends that the government breached the plea agreement by failing to

recommend a reduction for acceptance of responsibility at sentencing. We agree.

Hunter was induced to plead guilty to all charges against him based, in part, on the

promise that the government would recommend the reduction on his behalf. The

government not only failed to recommend the reduction at sentencing, but also

objected to and argued against Hunter receiving the reduction based on facts it

knew prior to offering the plea deal. This conduct constitutes a breach of the

agreement entered into by the parties. Accordingly, we vacate Hunter’s sentence

and remand to the district court for resentencing.

                                I. BACKGROUND

      A federal grand jury indicted Hunter on four charges of possession with

intent to distribute marijuana, cocaine, crack cocaine, and heroin, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C)–(D). These charges arose from a traffic stop,

wherein officers had stopped Hunter for illegal window tint on his vehicle, and,

after detecting marijuana, ordered Hunter out of his car and frisked him. Hunter

filed motions to dismiss and to suppress the evidence obtained during the stop,

which the district court heard and denied.

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      During the hearing on those motions (the “suppression hearing”), which took

place on February 4, 2015, with both parties present, the district court explicitly

found that Hunter’s testimony regarding some of the facts leading up to the traffic

stop was not credible. Specifically, the officers had testified that Hunter was

driving south on Congress Avenue and had oversteered into a right turn onto west

Blue Heron Boulevard when they pulled him over for his illegal window tint, but

Hunter testified that he was driving west on Blue Heron Boulevard, not Congress

Avenue, and had not oversteered. Acknowledging these factual discrepancies, the

district court found that “Hunter’s testimony [wa]s not credible in this regard.”

      After the suppression hearing, the government extended a plea deal. The

written plea agreement provided that Hunter would plead guilty to all four charges

brought against him, with the following relevant stipulation (the “acceptance-of-

responsibility reduction”):

             The United States agrees that it will recommend at
             sentencing that the Court reduce by two levels the
             sentencing guideline level applicable to the defendant’s
             offense, pursuant to [§] 3E1.1(a) of the Sentencing
             Guidelines, based upon the defendant’s recognition and
             affirmative and timely acceptance of personal
             responsibility.    If at the time of sentencing the
             defendant’s offense level is determined to be 16 or
             greater, the government will make a motion requesting an
             additional one level decrease . . . stating that the
             defendant has assisted authorities in the investigation or
             prosecution of her [sic] own misconduct by timely
             notifying authorities of his intention to enter a plea of
             guilty, thereby permitting the government to avoid
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             preparing for trial and permitting the government and the
             Court to allocate their resources efficiently.

Hunter accepted this deal and, on March 4, 2015, pleaded guilty at a change-of-

plea hearing in the district court.

      The United States Probation Office prepared a presentence investigation

report (PSI) that included a two-level increase for obstruction of justice and did not

include a reduction for acceptance of responsibility. Hunter submitted several

objections to the PSI, including objections to the enhancement for obstruction of

justice and the failure to include an acceptance-of-responsibility reduction. The

government did not request the reduction for acceptance of responsibility. Instead,

the government filed a motion seeking an upward departure or variance from the

recommended guidelines range. In response, Hunter filed a motion seeking a

downward variance due to, inter alia, the physical and mental harm he allegedly

suffered during his arrest.

      At sentencing, Hunter objected to the exclusion of the acceptance-of-

responsibility reduction from the PSI, arguing that the government’s failure to

recommend the reduction was a violation of the plea agreement. The government

again did not recommend the reduction. Instead, it officially objected to Hunter

receiving the reduction and argued for an enhancement. The government

maintained that it was not obligated by the plea agreement to seek a reduction for

acceptance of responsibility if the court concluded that Hunter had obstructed
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justice by committing perjury during his suppression hearing, even though the

hearing took place before the plea deal was offered. Arguing that this failure to

recommend the reduction constituted a breach, Hunter sought specific performance

by the government and to have the case reassigned to another judge.

      The district court found that the government had not breached the plea

agreement, but it expressed concern that “the Government seems to give with one

hand and take back with the other, because a defendant . . . would believe if he

signed this agreement that he was going to get the acceptance of responsibility.”

Thus, the district court held it would give Hunter the acceptance-of-responsibility

reduction to “solve this,” recognizing that “the decision to plead guilty is an

enormously important decision.” The government subsequently conceded that,

given the district court’s ruling, Hunter was “probably” entitled to a three-level

reduction. The government then argued its motion for an upward departure or

variance. In light of its rulings during the hearing, the court recalculated the

applicable guidelines range as 18 to 24 months’ imprisonment. Over Hunter’s

objections, the district court imposed a 60-month sentence. This appeal followed.

                                 II. DISCUSSION

      As a threshold matter, Hunter’s conditional plea agreement reserved the

right to appeal only the denial of his motion to suppress physical evidence and

waived other challenges. However, an appeal waiver does not bar a defendant’s

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claim that the government breached the plea agreement. United States v. Puentes-

Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015); United States v. Gonsalves, 121

F.3d 1416, 1419 (11th Cir. 1997). Thus, we may consider Hunter’s appeal.

      Hunter preserved his objection to the purported breach of the plea agreement

in the district court, and the parties agree on the facts material to this appeal.

Accordingly, we must determine only whether the government’s undisputed

conduct breached the plea agreement. We review this legal issue de novo. United

States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). We first address

whether the government breached its agreement with Hunter. Concluding that it

did, we then turn to the appropriate remedy.

      A. Breach

      “[A] plea agreement must be construed in light of the fact that it constitutes

a waiver of substantial constitutional rights requiring that the defendant be

adequately warned of the consequences of the plea.” United States v. Jefferies,

908 F.2d 1520, 1523 (11th Cir. 1990) (internal quotation marks omitted). “A

material promise by the government, which induces a defendant to plead guilty,

binds the government to that promise.” United States v. Thomas, 487 F.3d 1358,

1360 (11th Cir. 2007) (per curiam) (citing Santobello v. New York, 404 U.S. 257,

262, 92 S. Ct. 495, 499 (1971)). Hence, the government breaches a plea agreement

when it fails to perform the promises on which the plea was based.

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       “Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding at the time he entered his plea.” United

States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992). We apply an objective

standard to “decide whether the government’s actions are inconsistent” with the

defendant’s understanding of the plea agreement, Copeland, 381 F.3d at 1105,

rather than reading the agreement in a “hyper-technical” or “rigidly literal”

manner, United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992) (internal

quotation marks omitted).

       In exchange for Hunter’s promise to plead guilty to all four charges in his

indictment, the government promised to recommend a reduction for acceptance of

responsibility at sentencing. Yet, at sentencing, the government did not

recommend the reduction. In fact, the government objected to and argued against

Hunter receiving the reduction. Viewed objectively, “the government’s actions are

inconsistent with what the defendant reasonably understood when he entered his

guilty plea.”1 See Copeland, 381 F.3d at 1105 (internal quotation mark omitted);

cf. United States v. Keresztury, 293 F.3d 750, 756 (5th Cir. 2002) (“It is certainly

inconsistent with a defendant’s reasonable understanding of a promise not to

contest a reduction for acceptance of responsibility for the government to add its

       1
          The government’s statement at the sentencing hearing that Hunter was “probably”
entitled to the three-level reduction occurred after the district court had already ruled that it
would give Hunter the reduction. This perfunctory, after-the-fact concession does not constitute
the recommendation for which Hunter bargained.

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voice in support of the PSI recommendation that the defendant receive no such

reduction.”).

       It is clear that Hunter reasonably understood the government would

recommend the acceptance-of-responsibility reduction on his behalf at sentencing.

The promise to recommend the reduction was a key material concession made by

the government in the plea agreement. 2 The government did not drop any counts

in the indictment or promise to make any other recommendations to the court that

might potentially reduce Hunter’s sentence. And the government does not dispute

that its promise to recommend an acceptance-of-responsibility reduction was a

significant factor in Hunter’s decision to accept the plea agreement and waive his

right to a trial. Consequently, Hunter waived his substantial right to have the

government prove each charge against him beyond a reasonable doubt before a

jury of his peers as part of the consideration for the government’s promise to

recommend the acceptance-of-responsibility reduction. Thus, the government’s

failure to recommend the reduction violated the plea agreement reached by the

parties. See Santobello, 404 U.S. at 262, 92 S. Ct. at 499 (“[W]hen a plea rests in

any significant degree on a promise or agreement of the prosecutor, so that it can



       2
         The only other concession the government made was to allow Hunter to enter a
conditional plea permitting an appeal of the denial of the suppression motion, pursuant to Fed. R.
Crim. P. 11(a)(2). Hunter chose not to appeal the denial of his suppression motion, electing to
appeal only as to breach and sentencing.
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be said to be part of the inducement or consideration, such promise must be

fulfilled.”).

       However, the government maintains that no reversible error exists because it

was excused from recommending the reduction. Under the terms of the plea

agreement, the government was released from its obligation to recommend the

reduction if Hunter:

                (1) fails or refuses to make a full, accurate and complete
                    disclosure to the probation office of the
                    circumstances surrounding the relevant offense
                    conduct;
                (2) is found to have misrepresented facts to the
                    government prior to entering into this plea
                    agreement;
                (3) committed any act inconsistent with the acceptance
                    of responsibility pursuant to USSG § 3C1.1; or,
                (4) commits any misconduct after entering into this plea
                    agreement . . . .

The government contends that the second exception (the “misrepresentation

exception”) and/or the third exception (the “inconsistent act exception”) were met

here. In support, the government points to the district court’s explicit finding at the

suppression hearing: the testimony by Hunter regarding which road his car was on

and whether he crossed the safety line was not credible. Thus, on appeal, as before

the district court, the government argues that the district court’s credibility finding




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at the earlier suppression hearing is the sole and sufficient basis for releasing the

government from its obligation.

      We are unpersuaded. Neither the misrepresentation exception nor the

inconsistent act exception excuses the government from its obligation to

recommend the acceptance-of-responsibility reduction: the government cannot

avail itself of the exceptions based solely on facts of which it was aware prior to

entering the plea agreement. Such a practice would render the government’s

promise to recommend the reduction illusory and defy a defendant’s reasonable

understanding of the plea agreement.

      The district court expressly made its finding that Hunter’s testimony during

the suppression hearing was not credible before the negotiation of the plea

agreement, in the presence of both parties. This undisputed fact is dispositive.

At the time the government offered to recommend the reduction, it had full, current

knowledge of Hunter’s non-credible testimony. That cannot be sufficient to trigger

either the misrepresentation exception or the inconsistent act exception. If, at the

time it offered the plea agreement, the government was aware of facts that would

allow it to employ the exceptions and avoid its promise therein, then it would be

extending an illusory promise. The plea agreement—which is a contract between

the parties—would fail from the outset due to a lack of valid consideration. We

will not construe the agreement in this manner. See, e.g., M&G Polymers USA,

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LLC v. Tackett, 574 U.S. ___, ___, 135 S. Ct. 926, 936 (2015) (observing that

courts are “instruct[ed] . . . to avoid constructions of contracts that would render

promises illusory because such promises cannot serve as consideration for a

contract”).

      Moreover, a defendant would not have reasonably understood that the plea

agreement allowed the government to evade its promise to recommend the

acceptance-of-responsibility reduction. It has long been the rule in our circuit that

the defendant’s reasonable understanding of the agreement at the time of his plea

controls our inquiry into the putative breach, see, e.g., Copeland, 381 F.3d at 1105,

but the government failed to offer any argument in its brief that Hunter reasonably

should have understood that the government could opt out of recommending the

reduction. Perhaps that is because this would be a tough argument to make: a

defendant would not have reasonably understood that the government could renege

on recommending the reduction. As discussed above, the government knew

Hunter had given non-credible testimony at the suppression hearing before it

drafted, offered, and executed the plea agreement in which it promised to argue for

an acceptance-of-responsibility reduction. Likewise, at the time of receiving the

proffered plea deal, Hunter knew the government was aware the district court

found his testimony to be non-credible. Viewed objectively, Hunter would not

have reasonably understood the terms of his plea agreement to mean he was

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forfeiting a core constitutional right in exchange for a promise the government was

already excused from fulfilling—in other words, an empty promise. See In Re

Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986) (per curiam) (“To constitute a valid

waiver of substantial constitutional rights, a guilty plea . . . must be offered with

sufficient awareness of the likely consequences.” (citing Brady v. United States,

397 U.S. 742, 748, 90 S. Ct. 1463, 1468–69 (1970)).

      Our conclusion as to Hunter’s reasonable understanding of the agreement is

bolstered by the timeline of events in this case. See Rewis, 969 F.2d at 988

(instructing reviewing courts to consider the plea agreement against the

background of the plea negotiations). The plea bargaining process began directly

after the suppression hearing. As Hunter’s defense attorney recounted at the

sentencing hearing, “as soon as . . . motions were concluded and the [c]ourt ruled

[at the suppression hearing], [the Assistant United States Attorney (AUSA)

representing the government] and I had a conversation where he agreed to prepare

a plea agreement.” Hunter soon thereafter accepted the agreement, entering his

change-of-plea only one month after the hearing. Therefore, the district court

made an explicit finding of non-credibility at the suppression hearing—with both

parties present—immediately before the government offered the plea deal. No

significant time elapsed between the district court’s explicit finding of non-credible

testimony and the government’s proffer of a plea agreement premised on the

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acceptance-of-responsibility reduction such that we could believe either party had

overlooked or forgotten this finding.

      Given that both parties were present when the district court explicitly found

Hunter’s testimony not to be credible, and that the government then offered to

recommend a reduction if Hunter pleaded guilty, it was reasonable for Hunter to

believe that the promised recommendation would be forthcoming, notwithstanding

the pre-agreement conduct of which the government was well aware. Indeed, the

district court noted as much, stating: “[A] defendant . . . would believe if he signed

this agreement that he was going to get the acceptance of responsibility.” Under

the objective standard by which we evaluate plea agreements, this is precisely what

renders the government’s conduct a breach. We disagree with the district court’s

conclusion to the contrary.

      The government attempts to refute this conclusion by pointing to the text of

the plea agreement. To succeed on its argument, the government must convince us

that, based on the language of the above-discussed misrepresentation exception and

inconsistent act exception, Hunter reasonably should have known that the

government was not required to recommend the reduction. See Copeland, 381

F.3d at 1105. We are not convinced. The government’s interpretation of the

exceptions is in fact inconsistent with the text.




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      The misrepresentation exception states that the government is excused from

its obligation if a misrepresentation “is found.” The government wants us to read

this phrase as including misrepresentations that are “already known.” However, a

more reasonable reading is that this clause anticipates later discovery of

dishonesty. See Rewis, 969 F.2d at 988 (noting that, to the extent any term in the

agreement is ambiguous, we construe it against the government). That is to say,

the exception most reasonably covers a scenario where the government extends an

offer, the defendant accepts, and the government only then discovers that the

defendant had been dishonest during or prior to the plea negotiation. In such a

circumstance, we would have little trouble concluding that the government was

excused from its obligation. Yet, in the present case, there were no newly found

misrepresentations; the government did not discover dishonesty or additional

misconduct. We cannot conclude that, based on a straightforward reading of this

text, Hunter should have reasonably understood his earlier suppression hearing

testimony to implicate this exception. Consequently, the misrepresentation

exception does not excuse the government from its obligation.

      Separately, the inconsistent act exception excuses the government if Hunter

“committed any act inconsistent with the acceptance of responsibility pursuant to

USSG § 3C1.1.” The government contends that, under this exception, it was only

required to recommend the reduction if the district court did not apply an

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obstruction-of-justice enhancement based on Hunter’s suppression hearing

testimony. In other words, according to the government, it had the right to seek an

obstruction-of-justice enhancement based on Hunter’s earlier “inconsistent act”

(or, to wait and see whether the district court made such a finding), and it only had

to recommend the acceptance-of responsibility reduction if the court did not apply

the enhancement.

       This complicated interpretation of the exception is belied by the agreement’s

plain language. Nowhere does the agreement suggest that the government’s

promise to recommend the acceptance-of-responsibility reduction was contingent

on some condition precedent, such as the district court failing to find an

obstruction of justice.3 If the government intended to condition its obligation to

recommend the reduction on a specific ruling with regard to an obstruction

enhancement, then it should have made that condition express. Moreover, we will

not read the affirmative language that the government will recommend the

reduction as intending to do the opposite—placing itself in an inconsistent position

by hoping for the opposite of its promise, and only upon receiving an adverse

       3
          In fact, even if the district court had found obstruction of justice, such a finding would
not excuse the government from its obligation to recommend the acceptance-of-responsibility
reduction: the Sentencing Guidelines explicitly anticipate that adjustments under both the
obstruction enhancement and the acceptance reduction may apply in some cases. See U.S.S.G. §
3E1.1 n.4. Additionally, the record contradicts the government’s argument. The transcript of the
sentencing proceedings demonstrates that the government immediately and explicitly objected to
Hunter receiving the acceptance-of-responsibility reduction. Thus, as a matter of both law and
fact, the government’s obstruction-of-justice argument is a non-sequitur.

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ruling fulfilling the express promise it made to the defendant. This type of “heads

I win, tails you lose” interpretation is incompatible with the plea bargaining

process.

      For these reasons, we are not persuaded that any language in the plea

agreement excused the government from its obligation to recommend the

acceptance-of-responsibility reduction at sentencing. The government referred to

the exceptions paragraph in the plea agreement as its “escape clause.” But to

accept the government’s argument is to accept that the government could make a

promise it knew it did not have to keep; it could induce a guilty plea in exchange

for nothing. That is not an escape clause—it is a trap door.

      In sum, to obtain Hunter’s guilty plea to all charges in the indictment, the

government agreed to recommend a reduction for acceptance of responsibility.

However, the government not only failed to recommend the reduction at Hunter’s

sentencing, but, in the face of Hunter’s continued objection that this refusal

constituted a breach of the plea agreement, the government persisted in actively

and formally opposing the reduction. There is no viable excuse for this conduct; it

constitutes a significant and deliberate breach of the plea agreement.

      B. Remedy

      When a breach of the plea agreement is established and an objection to the

breach was preserved, “automatic reversal is warranted.” Puckett v. United States,

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556 U.S. 129, 141, 129 S. Ct. 1423, 1432 (2009) (citing Santobello, 404 U.S. at

261–62, 92 S. Ct. at 498–99). In such circumstances, reversal is based “upon a

policy interest in establishing the trust between defendants and prosecutors that is

necessary to sustain plea bargaining—an essential and highly desirable part of the

criminal process.” Id., 129 S. Ct. at 1432 (internal quotation marks omitted).

Since we conclude that the government breached the plea agreement and Hunter

preserved his objection to that breach, reversal is required.

      Additionally, Hunter is entitled to a remedy. Under our precedent, “[t]here

are two remedies available when a plea agreement is breached: (1) remand the case

for resentencing according to the terms of the agreement before a different judge,

or (2) permit the withdrawal of the guilty plea.” Rewis, 969 F.2d at 988–89; see

Boatner, 966 F.2d at 1580. The choice between these two remedies is within our

discretion, although withdrawal of the plea is less favored in our circuit. See

Jefferies, 908 F.2d at 1527 (collecting cases favoring specific performance).

      Hunter does not wish to withdraw his plea. Instead, he requests remand and

resentencing before a different judge. Hunter’s guilty plea was clearly induced by

the government’s promise to recommend an acceptance-of-responsibility

reduction. The government is therefore bound to that promise, and Hunter is

entitled to specific performance of the terms of the agreement as he reasonably

understood them at the time of his plea. Accordingly, as it is within our discretion

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to do, we remand for resentencing according to the terms of the agreement before a

different judge. See United States v. Tobon-Hernandez, 845 F.2d 277, 281 (11th

Cir. 1988) (exercising discretion “in favor of specific performance” and remanding

“for resentencing by another judge in compliance with the plea agreement”).

       The government objects to this result, taking the position that, irrespective of

breach, Hunter is not entitled to any remedy. In the government’s view, Hunter

already got exactly what he bargained for because the district court applied the

acceptance-of-responsibility reduction. However, this position is irreconcilable

with the Supreme Court’s decision in Santobello. There, the Court reversed even

though the district court had explicitly stated that the government’s sentencing

recommendation (which the Court found to be in breach of the parties’ agreement)

did not influence its sentencing decision. Santobello, 404 U.S. at 262, 92 S. Ct. at

499. We similarly reverse where the district court disregarded the government’s

failure to recommend—and objection to—the acceptance-of-responsibility

reduction.4



       4
          The government’s reliance on Puckett to claim Hunter must show the breach affected
his sentence is inapposite. Puckett was decided under plain-error review and did not purport to
overrule Santobello in the preserved-error context. Puckett, 556 U.S. at 140–41, 129 S. Ct. at
1432. To the contrary, Puckett reaffirmed the Supreme Court’s holding in Santobello that
“automatic reversal is warranted when objection to the government’s breach of a plea agreement
has been preserved.” Id. at 141, 129 S. Ct. at 1432. And no binding precedent from either this
court or the Supreme Court permits deviation from Santobello in the preserved-error context.
Thus, for a breach that was objected to in the proceedings below, Santobello remains the
controlling case.
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      Under Santobello, we are not concerned with whether the district court was

influenced by the government’s recommendation (or lack thereof); instead, our

focus is on “the interests of justice and appropriate recognition of the duties of the

prosecution in relation to promises made in the negotiation of pleas of guilty.” Id.,

92 S. Ct. at 499. The holding from and principles in Santobello are premised on

the nature of the plea bargaining process.

      As we have frequently noted in applying these principles, “the AUSA, not

the court, violated the plea agreement; the sentencing judge’s acts are not

important to this issue.” United States v. Johnson, 132 F.3d 628, 630 (11th Cir.

1998) (per curiam); see Tobon-Hernandez, 845 F.2d at 280 (“[W]e do 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.”); accord United States v.

VanDam, 493 F.3d 1194, 1204 (10th Cir. 2007); United States v. Clark, 55 F.3d 9,

13 (1st Cir. 1995) (“[E]ven if, as in this case, the sentencing judge indicates that

the prosecutor’s breach had no effect on the defendant’s sentence, the defendant is

still entitled to a remedy.”). This makes sense; entering into a plea agreement

forms a contract between the defendant and the government, and it is the

defendant’s rights that are violated when the government breaks its promises in the

agreement. By agreeing to plead guilty pursuant to a plea agreement, the

defendant waives his rights “not in exchange for the actual sentence or impact on

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the judge, but for the prosecutor’s statements in court.” Correale v. United States,

479 F.2d 944, 949 (1st Cir. 1973) (emphasis added).

       Neither Hunter nor the government could control how the district court

sentenced Hunter. That is, Hunter could not bargain for, and thus was never

entitled to, the acceptance-of-responsibility reduction itself. Hunter bargained for

the government to stand before the district court and affirmatively recommend the

reduction on his behalf. What Hunter received instead was the government

objecting to the reduction in the district court and arguing against the suggestion

that Hunter was entitled to it. Any actions by the district court thereafter are

irrelevant to the breach and the remedy; the court can neither moot nor cure the

government’s breach.5

       Thus, applying Santobello, we reject the government’s argument that,

because the district court applied the acceptance-of-responsibility reduction, no

remedy for the government’s breach is warranted. Hunter bargained for—and is

entitled to—the government’s recommendation of the reduction on his behalf.

That is what he must receive when he is resentenced. Accordingly, we remand for

       5
          Although the district court cannot cure the government’s breach of a plea agreement,
the Supreme Court has opined that the government may be able to do so. See Puckett, 556 U.S.
at 140, 129 S. Ct. at 1432 (commenting that the government may be able to cure a breach if it
“simply forgot its commitment and is willing to adhere to the [plea] agreement”); see also United
States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010) (noting that the government might be
able to cure a breach if it immediately and unequivocally adhered to the plea agreement upon
objection). Here, the government failed to brief and thus waived any argument that it acted to
somehow cure the breach. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
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resentencing before a different district court judge. We do so, not due to lack of

trust in the original sentencing judge’s capacity for fairness, but to reestablish the

trust between the defendant and the government that is essential to the plea

bargaining process.

                                   III. CONCLUSION

       “Because plea bargaining requires defendants to waive fundamental

constitutional rights, we hold prosecutors engaging in plea bargaining to the most

meticulous standards of both promise and performance.” United States v. Riggs,

287 F.3d 221, 224 (1st Cir. 2002) (internal quotation marks omitted). In addition,

the plea bargaining process “must be attended by safeguards to insure the

defendant what is reasonably due in the circumstances.” Santobello, 404 U.S. at

262–63, 92 S. Ct. at 499. Such requisite standards and safeguards were not met in

the proceedings below. We find that the government breached its plea agreement

with Hunter, and we reverse and remand for resentencing consistent with this

opinion.6

       REVERSED and REMANDED.




       6
        Given that the breach of the plea agreement requires vacatur of Hunter’s sentence,
Hunter’s additional challenge to the procedural reasonableness of his sentence is moot.

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