                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 09-4163
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                                 LEROY ROEBUCK,
                                                Appellant
                                    ____________

                           On Appeal from the District Court
                           of the United States Virgin Islands
                         District Court No. 3-09-cr-00010-001
                    District Judge: The Honorable Curtis V. Gomez

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                December 16, 2010

         Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

                              (Filed: December 20, 2010)

                               _____________________

                                     OPINION
                               _____________________

SMITH, Circuit Judge.

      Leroy Roebuck pled guilty to possessing marijuana with intent to distribute on

July 15, 2009. Under the terms of the plea agreement, the United States agreed to

dismiss part of the indictment, to file a U.S.S.G. § 5K1.1 motion for downward departure

at sentencing, and to specifically recommend a sentence of probation. At the sentencing
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hearing, however, the prosecutor did not recommend probation, and instead voiced a

recommendation of zero to six months’ imprisonment. The District Court imposed a

sentence of six months’ imprisonment, whereupon defense counsel reminded the

prosecutor of his commitment to recommend probation.           The parties and the court

conferred at a sidebar, where the government acknowledged that it had inadvertently

reneged on part of its share of the plea bargain. The court did not alter its sentence, but

instead instructed the parties to file appropriate motions. Both the government and the

defendant complied, filing separate motions for a stay of the sentence. The court denied

both motions on October 13, 2009. The government filed a motion for resentencing two

days later, but the court entered judgment imposing the six-month sentence that same

day. The defendant timely appealed his sentence, asking that the case be remanded to the

District Court for resentencing. To its credit, the government acknowledges its error and

supports the defendant’s request that the plea bargain be enforced.

       Whether the government has violated the terms of a plea agreement is a question

of law to be reviewed de novo; if a violation is found the case must be remanded either

for resentencing or for withdrawal of the guilty plea. United States v. Moscahlaidis, 868

F.2d 1357, 1360 (3d Cir. 1989) (citing Santobello v. New York, 404 U.S. 257 (1971);

United States v. Miller, 565 F.2d 1273 (3d Cir. 1977); United States v. Crusco, 536 F.2d

21 (3d Cir. 1976)). We agree with the parties that the government violated the terms of

the plea agreement by failing to recommend a sentence of probation. The prosecution

made a commitment and admits failing to live up to it. The attempted correction at the

sidebar conference came too late to affect the District Court’s decision and was not an
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adequate substitute for specific performance. Accordingly, vacatur of the sentence is

warranted.

      As to remedy, the defendant does not ask to withdraw his plea, preferring instead

to be resentenced in accordance with the terms of his agreement. We agree that this is the

appropriate resolution of the case, and will therefore remand with instructions that the

defendant be resentenced by a different judge.




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