                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 14 2004
                                     TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 03-2246
          v.                                           (D. New Mexico)
 OSWALDO MATA-VASQUEZ,                                (CR-02-1521-WPJ)

               Defendant-Appellant.




                            ORDER AND JUDGMENT           *




Before HENRY , LUCERO , and TYMKOVICH, Circuit Judges.



      Oswaldo Mata-Vasquez pleaded guilty to one count of reentry into the

United States following deportation and a prior conviction for an aggravated

felony, a violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(1). The district court

denied his motion for downward departure on the grounds of diminished capacity

under USSG § 5K2.13, denied his request to continue the sentencing hearing, and

sentenced him to thirty-three months’ imprisonment.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
      Prior to sentencing, Mr. Mata-Vasquez and the government’s attorney

reached an oral agreement that the government would not oppose his motion for

downward departure. Mr. Mata-Vasquez now contends that the government’s

attorney breached that agreement by commenting on Mr. Mata-Vasquez’s criminal

history at sentencing. We agree, and therefore vacate Mr. Mata-Vasquez’s

sentence and remand the case for resentencing before a different judge.



                         I. FACTUAL BACKGROUND

      In August 2002, Mr. Mata-Vasquez pleaded guilty to unlawfully reentering

the United States after a felony conviction, in violation of 8 U.S.C. § 1326(a)(1),

(a)(2), and (b)(1). There was no written plea agreement.

      Mr. Mata-Vasquez objected to the initial presentence report and presented a

psychological evaluation that indicated that, with an IQ of 51, he suffered from

diminished capacity. In response, the probation office prepared an addendum to

the presentence report that recommended a downward departure based on

diminished capacity. In turn, Mr. Mata-Vasquez filed a motion for downward

departure. He argued that the offense was non-violent, that he was suffering from

significantly reduced mental capacity, that the diminished capacity was not caused

by the voluntary use of drugs or alcohol, that his diminished capacity contributed

to the commission of the offense, and that his criminal history did not indicate a


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need to protect the public. The motion did not request a specific level of

departure but instead sought a sentence of time-served. Prior to sentencing, Mr.

Mata-Vasquez’s attorney and Assistant United States Attorney Mark D’Antonio

entered into an oral agreement that the government would not oppose a four-level

downward departure on the grounds of diminished capacity.

       At sentencing, Mr. Mata-Vasquez’s counsel first sought the four-level

departure that would reduce Mr. Mata-Vasquez’s base offense level to 9, resulting

in a sentencing range of 21 to 27 months. Counsel cited Mr. Mata-Vasquez’s

psychological evaluations and low IQ, which placed him “firmly in the bottom 1%

of the population.” Rec. vol. I, doc. 30, at 2-3 (Evaluation Report filed June 27,

2003). Defense counsel noted that Mr. Mata-Vasquez’s IQ level of about forty

points below the average prisoner placed him “well out of the Heartland,” given

the average IQ levels among the prison population to date.          Id. vol. III, at 4

(Sentencing Hr’g dated Sept. 22, 2003) (citing         United States v. Adonis , 744 F.

Supp. 336, 341 (D.D.C. 1990)) (“According to the most comprehensive study of

IQ levels and mental retardation among the prison population to date, the average

IQ of this population is 93.2. . . .”). Mr. Mata-Vasquez’s counsel then asked for

an additional two level downward departure, which would result in a sentence

“very close to . . . time served.”   Id. at 6.




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       In response, Mick Guitierrez, the Assistant United States Attorney handling

the sentencing hearing, conceded that the government had agreed not to oppose a

four-level reduction. However, the AUSA stated “that’s as far as the

Government’s willing to go,” and proceeded to “make a couple of observations.”

Id. at 7. Defense counsel attempted to interrupt, but was quieted by the court.

       The AUSA then advised the court that it “may not depart below the

applicable guideline range if . . . the defendant’s criminal history indicates a need

to incarcerate the defendant to protect the public.”   Id. (quoting USSG § 5K2.13).

The government observed that Mr. Mata-Vasquez had the highest possible

criminal history category of VI, and reminded the court that Mr. Mata-Vasquez

was convicted of assault and family violence, and theft over $1,500. The

government continued:

       Now, the Court may be thinking: Why on the one hand does the
       Government agree to four levels and on the other hand say he’s got a
       criminal history category VI, and the two don’t comport?         And I
       think that, in dealing with any type of defendant, the Court will use
       its discretion in trying to figure out what is a just result in this. And
       I believe, Mr. D’Antonio, in dealing with [defense counsel] – since
       he had given his word that he’d be going the four levels, then I won’t
       object to that. But I would point out to the Court and caution the
       Court to not go any further because of these facts that are presented
       in the case.

Id. at 8 (emphasis supplied).

       Mr. Mata-Vasquez’s counsel sought a continuance, claiming that the

government’s argument was inconsistent with the agreement made with Mr.

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D’Antonio and violated an oral agreement not to bring up “any negative aspects

about Mr. Oswaldo Mata-Vasquez.”      Id. at 9. The court denied the motion. The

court stated that “[t]he Government comments about – or the dispute about what,

in fact, the Government would oppose and not oppose does not influence my

decision.” Id. at 11. The court noted Mr. Mata-Vasquez’s IQ, and then

immediately noted that

      Mr. Mata-Vasquez’s presentence report indicates also the following
      facts: That at the time of his arrest, he admitted he was a citizen of
      Mexico and in the United States illegally; that he has a criminal history
      dating back to age 16, in 1995 including a conviction for assault and
      family violence in 2000; he has a sixth grade education and specialized
      training and skills as a mechanic an electrician, and know how to fix
      televisions, VCR’s and radios.

      . . . [A]lthough he may not fully comprehend why it is wrong to return
      to the United States, he does, apparently, understand the wrongfulness
      of his actions.

Id. at 12-13.

      The court concluded that Mr. Mata-Vasquez was “not entitled to a

downward departure based on a diminished mental capacity.”      Id. at 13. The

court observed, echoing the argument of the AUSA that the “two don’t comport,”

that it was “having troubling squaring an allegation of diminished capacity or IQ

of the range being asserted by the defendant with the long criminal history that is

presented to the Court.”   Id.




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       The court found that it was not authorized to depart for two reasons: First,

Mr. Mata-Vasquez did “understand the wrongfulness of his actions.”           Id. at 13

(referring to USSG 5K2.13 comment (n.1), which defines “significantly reduced

mental capacity” where “the defendant, although convicted, has a significantly

impaired ability to . . . understand the wrongful of the behavior comprising the

offense or to exercise the power of reason.”). Second, “his extensive criminal

history,” id. , suggested “a need to incarcerate the defendant to protect the public.”

USSG § 5K2.13. Finally, the court noted that “[e]ven if departure were

authorized under the facts of this case,   which I do not believe it is    , I would still

exercise my discretion not to depart.”     Id. (emphasis supplied)

       Mr. Mata-Vasquez’s counsel again sought a continuance, citing the absence

of Mr. D’Antonio from the hearing. The government did not oppose the

continuance. The court rejected this motion, stating “I put on the record that I

don’t believe any dispute between what . . . Mr. D’Antonio[] may or may not have

said had any influence on my decision to deny[] the motion [to depart].”          Id. at

14.

       Defense counsel sought another continuance, citing the absence of two

family members who could present testimony regarding Mr. Mata-Vasquez. The

court denied the motion. Defense counsel asked the court to reconsider its refusal

to grant a continuance, citing recent Supreme Court jurisprudence regarding



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mentally incapacitated defendants, and emphasizing Mr. Mata-Vasquez’s

significantly reduced mental capacity. When asked, the government replied that

“the Court can go to sentencing.”    Id. at 16.

         The court allowed Mr. Mata-Vasquez to make a statement and proceeded to

sentence him to thirty-three months’ incarceration and two years’ supervised

release.

         Defense counsel sought an additional continuance, citing the problems Mr.

Mata-Vasquez has faced while in protective custody (which included abuse), and

suggested that prison personnel observations might support a downward

departure. The government     opposed the continuance and the court rejected the

motion.



                                    II. DISCUSSION

         On appeal, Mr. Mata-Vasquez challenges the district court’s denial of his

requests to continue the sentencing hearing. He contends that the AUSA’s

comments at sentencing breached the government’s agreement that it would not

oppose a four-level downward departure. Mr. Mata-Vasquez requests this court

to vacate his sentence and remand the case for resentencing before a different

judge.

         A. Jurisdiction and Standard of Review



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      We must first determine whether we have jurisdiction over this appeal. As

a general rule, absent the district court’s misunderstanding of its authority to

depart, we lack jurisdiction to review a sentencing court’s discretionary refusal to

depart downward from the guideline sentencing range.       See United States v.

Brown , 316 F.3d 1151, 1154 (10th Cir. 2003). However, we do have jurisdiction

to review a defendant’s contention that the government has breached an

agreement regarding a request for departure.     See United States v. Brye , 146 F.3d

1207, 1209 (10th Cir. 1998). “Whether government conduct has violated a plea

agreement is a question of law which we review de novo.”       Id. (internal quotation

marks omitted).



      B. Breach of the Agreement

      Mr. Mata-Vasquez contends that the AUSA’s comments at sentencing

breached the agreement not to oppose a four-level departure motion. The

government disagrees, maintaining that the AUSA “did nothing more than recite

the applicable law . . . , refer the court to the facts in the presentencing report,

and urge the court not to depart more than four levels.” Aple’s Br. at 19.

According to the government, “[t]he fact that the court disagreed with both [Mr.]

Mata-Vasquez and the government and denied [Mr.] Mata-Vasquez’s motion does

not mean that the government breached its agreement.”       Id.



                                           -8-
         The parties acknowledge that the oral agreement in question was equivalent

to a plea agreement. We therefore consider our plea agreement jurisprudence,

applying general principles of contract law to determine the obligations of the

parties. See Brye , 146 F.3d at 1210. This Court construes the agreement

according to “what the defendant reasonably understood” at the time of the

agreement. United States v. Veri , 108 F.3d 1311, 1313 (10th Cir. 1997). We will

hold the government to those promises “that it actually made to the defendant.”

United States v Peglera , 33 F.3d 412, 413 (4th Cir. 1994).

         Moreover, “[b]oth to protect the plea bargaining defendant from

overreaching by the prosecutor and to insure the integrity of the plea bargaining

process, the most meticulous standards of both promise and performance must be

met by the government.”     United States v. Ingram , 979 F.2d 1179, 1184 (7th Cir.

1992).     “Because a government that lives up to its commitments is the essence of

liberty under law, the harm generated by allowing the government to forego its

plea bargain obligations is one which cannot be tolerated.”    Peglera , 33 F.3d at

414.

         Applying those principles, this court has carefully scrutinized the

statements of government lawyers who have allegedly violated plea agreements

through arguments at sentencing. We have concluded that a government lawyer

may not “accomplish ‘through indirect means what it promised not to do



                                            -9-
directly.’” United States v. Hawley , 93 F.3d 682, 692 (10th Cir. 1996) (quoting

United States v. Hand , 913 F.2d 854, 856 (10th Cir. 1990) (internal quotation

marks omitted). In determining whether the government has fulfilled its

obligations, we have considered not only attorneys’ explicit statements but also

the implications of those statements, noting that the government may breach an

agreement by “thinly disguised . . . effort[s] to persuade the court in a way that

the government promised it would not do.”          Brye , 146 F.3d at 1213 (quoting

Hawley , 93 F.3d at 693).

      For example, in Brye , we concluded that the government had breached its

agreement not to oppose a motion for downward departure on the grounds of

coercion and duress by the defendant. Although the government attorney did not

expressly state that it opposed the departure motion, he did refer the court to the

Guidelines and the record in the following terms:

                     Section 5K2.12 speaks of “serious” duress. The
             guideline drafters further provided that the extent of
             departure, if any, should be based upon the reasonableness
             of the defendant's conduct and whether it would have
             [been] less harmful.
                     One of the best methods for the court to determine
             this issue is to review the defendant’s own words , captured
             in a wiretap, as he spoke those words just prior to, and
             after, the car chase. They reflect defendant's decisions in
             dealing with what had, undisputably, been a long-standing
             “family” matter, potentially involving inter-family
             violence. The real issue seems to be whether the “duress”
             was so extreme that defendant acted reasonably by



                                            -10-
             breaking the law to protect himself and others,   or whether
             this was a case of mutual combatants.

146 F.3d at 1213 (emphasis added).

      We concluded that the implication of this statement was clear: Judge

Briscoe, writing for the court, noted: “By pointing out the ‘real issue’ and

highlighting the ‘defendant’s own words’ as ‘one of the best methods for the

court to determine this issue,’ the government was obviously, albeit subtly, taking

a position on whether defendant should receive a downward departure for

coercion and duress.”   Id. We added that “perhaps the best indication of the fact

that the government’s statements were meant to persuade is that the court

ultimately resolved defendant’s motion by reviewing defendant’s ‘own words’ in

the tape-recorded conversations and concluding the brothers had a ‘mutual

disagreement.’”   Id.

      Brye is applicable here. Like the prosecutor in    Brye , the AUSA, although

not directly opposing the motion for downward departure, informed the district

court that a four-level departure did not “comport” with Mr. Mata-Vasquez’s

criminal history. The government then sought to distance itself from its words by

suggesting to the court that it had the discretion to determine the appropriate

result in the case. The AUSA undermined the persuasive effect of the

government’s agreement to a four-level departure by pointing to parts of the

record that suggested that departure was not warranted – indeed, not possible –

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and by reminding the court that it need not depart as much as the parties had

agreed. See United States v. Cooper , 70 F.3d 563, 567 (10th Cir. 1995) (noting

that “[t]he prosecutor has many ethical duties, including ethical duties of deciding

what charges to bring and what plea agreements to make” and stating that “[i]f at

a later date the government discovers facts that cause it to believe that its

prosecutorial discretion was not properly exercised, it has the ethical obligation to

withdraw from the plea agreement and advise the defendant so that he or she may

prepare for trial or renegotiate”)

      As in Brye , this was “a thinly disguised, if disguised at all, attempt to

persuade the court in a way that the government had promised it would not do.”

146 F.3d at 1213. Moreover, just as in   Brye , the persuasive effect of the

government’s indirect advocacy against departure is apparent from the district

court’s ruling. In refusing to depart to any degree, the court referred to Mr. Mata-

Vasquez’s history—the very factor that the AUSA had stated did not “comport”

with departure. We therefore conclude that the government breached its

agreement not to object to a four-level departure.

      C. Remedy for Breach

      Having determined that the government breached the agreement, we turn to

the question of remedy. When the government inadvertently breaches a plea

agreement, “the interests of justice and appropriate recognition of the duties of



                                          -12-
the prosecution in relation to promises made in the negotiation of pleas of guilty

will be best served by remanding the case to the state courts for further

consideration.”    Santobello v. New York,      404 U.S. 257, 263 (1971). Following

Santobello , this circuit has remanded cases to the district court to determine

whether the appropriate remedy for the government’s breach of the plea

agreement should be withdrawal of the plea agreement or resentencing before a

different judge.   See Brye , 146 F.3d at 1214; Hawley , 93 F.3d at 694.

       Here, Mr. Mata-Vasquez seeks only resentencing before a different judge.

That remedy is pro forma , and usually afforded.       See Brye , 146 F.3d at 1213

(“Since it does not appear that the government’s breach [was] egregious or

intentional, . . . we remand only for resentencing by a different judge.”). The fact

that the district court stated that the AUSA’s comments did not affect its decision

does not alter our analysis.   See Santobello, 404 U.S. at 262 (stating that it need

not consider whether the prosecutor’s recommendation influenced the sentencing

court); Hawley , 93 F.3d at 693 (“The government breached its plea agreement

with Hawley, and Hawley is entitled to relief       regardless of whether the

government’s conduct actually affected the sentencing judge.”) (emphasis

supplied). As in Santobello , “[w]e emphasize that this is in no sense to question

the fairness of the sentencing judge; the fault here rests on the prosecutor, not on

the sentencing judge.” 404 U.S. at 263.



                                             -13-
                              III. CONCLUSION

      Accordingly, we conclude that Mr. Mata-Vasquez is entitled to specific

performance of the government’s agreement not to oppose, either directly or

indirectly, a four-level downward departure. We therefore VACATE Mr. Mata-

Vasquez’s sentence and remand for resentencing by a different judge.



                                     Entered for the Court



                                     Robert H. Henry
                                     Circuit Judge




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