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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1128 <br> <br>                          UNITED STATES, <br> <br>                            Appellant, <br> <br>                                v. <br> <br>                  EDWIN MOURE-ORTIZ, A/K/A AGUI, <br> <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Selya, Circuit Judge, <br> <br>                and Acosta, Senior District Judge. <br> <br>                      _____________________ <br> <br>    Antonio R. Bazn, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, and Jos A. Quiles-Espinosa, <br>Senior Litigation Counsel, were on brief, for appellant. <br>    Bruce J. McGiverin, by appointment of the Court, for appellee. <br> <br> <br>                       ____________________ <br> <br>                           July 8, 1999 <br>                       ____________________

         ACOSTA, Senior District Judge.  This is an appeal by the <br>Government from a sentence imposed following a guilty plea pursuant <br>to a plea agreement tendered under Fed. R. Crim. P. 11(e)(1)(C).  <br>We have jurisdiction under 28 U.S.C.  1291 and 18 U.S.C. <br> 3742(b), (c) and review de novo.  United States v. Ticchiarelli, <br>171 F.3d 24 (1st Cir. 1999).  We reverse and remand. <br>  Defendant Edwin Moure Ortiz ("Moure") was indicted by a <br>grand jury on February 28, 1996, and charged with conspiracy to <br>distribute in excess of five kilograms of cocaine (Count One); <br>aiding and abetting in the possession with intent to distribute two <br>kilograms of cocaine (Count Two); carrying a firearm during and in <br>relation to a drug trafficking crime (Count Three); and using a <br>communication facility to commit and facilitate the crime of <br>distribution of narcotics (Count Four). <br>  On March 4, 1997, Moure  pled guilty to counts Two and <br>Three, conditioned upon Moure's right to appeal the district <br>court's denial of his motion to dismiss the firearms count.  <br>Sentence was scheduled for July 11, 1997. <br>  Prior to sentencing, Moure filed a motion for downward <br>departure pursuant to United States Sentencing Guidelines <br>("Guidelines")  5H1.4 due to his "extraordinary physical <br>impairment."  He also requested that Dr. Wilfredo Daz Romero, the <br>medical director of MDC Guaynabo, be permitted to testify regarding <br>his medical condition. <br>  The Court held a hearing on July 10, 1997 at which <br>Dr. Daz Romero testified that Moure suffered from polycythemia <br>vera, a condition which constituted an "extraordinary physical <br>impairment" rendering Moure seriously infirm.  The Court took <br>Moure's request for downward departure under advisement and <br>sentencing was rescheduled for July 29, 1997. <br>  On July 29, 1997, the Court granted a motion by Moure to <br>withdraw his guilty plea.  Subsequently, the United States and <br>Moure negotiated an 11(e)(1)(C) plea agreement pursuant to which <br>Moure would plead guilty to Count Two and the remaining counts <br>would be dismissed.  This second plea agreement called for a <br>specific sentence of 84 months of imprisonment based on an adjusted <br>offense level of 28. <br>  On August 22, 1997, the Court held a change of plea <br>hearing, during which Moure entered a plea of guilty to Count Two <br>of the indictment.  After advising the defendant of his rights, the <br>Court stated as follows: <br>    Very well, the plea agreement is hereby <br>  order[ed] filed.  The Court does hereby accept <br>  the plea agreement and will sentence the <br>  defendant in accordance with the plea <br>  agreement after receiving the pre-sentence <br>  report. <br>  After the defendant had accepted the Government's version <br>of the facts, the district court also advised the defendant as <br>follows: <br>    Even though the Court has accepted the plea <br>  agreement, I want you to be aware that the <br>  guideline sentence in the pre-sentence report <br>  may be different from the one that has been <br>  contemplated in these negotiations as a result <br>  of the findings of the pre-sentence report.  <br>  But the Court in this hearing has accepted the <br>  plea agreement and will sentence you according <br>  to the plea agreement. (emphasis ours). <br> <br>  Having thus declared its intentions for the record, the  <br>parties were nonplussed when the Court announced at the sentencing <br>hearing held on October 10, 1997, that it would, sua sponte, depart <br>downward from the agreed-to specific sentence of 84 months due to <br>Moure's extraordinary physical impairment. <br>  Despite the Government's objections to the Court's <br>unanticipated downward departure, and its explanation that Moure's <br>physical condition had been taken into account during the <br>renegotiations that followed defendant's withdrawal of his original <br>guilty plea, and despite the Court's acknowledgment that "[t]he <br>usual case... is that the Court either accepts the plea agreement <br>or gives the defendant an opportunity to withdraw his plea.", the <br>Court, finding that extraordinary circumstances and the interests <br>of justice so warranted, proceeded to depart downward from the <br>expected 84 month sentence to the Guidelines level identified in <br>the Presentence Report, and sentenced defendant to 63 months. <br>                           DISCUSSION  <br>  A contractual approach to disputes over plea agreements  <br>"ensures not only that constitutional rights are respected, but <br>also that the integrity of the criminal process is upheld."  United <br>States v. Papaleo, 853 F.2d 16, 19 (1st Cir. 1988). <br>  A principal purpose of an 11(e)(1)(C) agreement is to <br>permit the Government and the defendant to come to an agreement as <br>to a specific sentence. <br>  Thus, Rule 11(e) Fed. R. Crim. P. provides in pertinent <br>part as follows: <br>  (E) Plea Agreement Procedure <br>     (1) In General.  The attorney for the government and <br>the attorney for the defendant or the defendant when acting pro se <br>may engage in discussions with a view toward reaching an agreement <br>that, upon the entering of a plea of guilty or nolo contendere to <br>a charged offense or to a lesser or related offense, the attorney <br>for the government will do any of the following: <br>    (A) move for dismissal of other charges; or <br>    (B) make a recommendation, or agree not to oppose <br>the defendant's request, for a particular sentence, with the <br>understanding that such recommendation or request shall not be <br>binding upon the court; or <br>    (C) agree that a specific sentence is the <br>appropriate disposition of the case. <br> <br>  Once the court accepts an 11(e)(1)(C) agreement, an <br>expectation is created in the parties that the court--if it <br>proceeds to impose sentence--will indeed sentence defendant in <br>conformity with the dispositions of the contract. <br>  After the district court provisionally accepted the <br>agreement, its only recourse was to reject the agreement if it <br>found the negotiated sentence unsatisfactory.  "If the Court did <br>not find the terms [of the agreement] appropriate, its only option <br>was to reject the agreement in its entirety."  United States v. <br>Mukai, 26 F.3d 953, 956 (9th Cir. 1994).  See also United States v. <br>Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997) ("An 11(e)(1)(C) plea <br>agreement, once accepted, binds the district court notwithstanding <br>departures from the applicable guidelines"); United States v. Veri, <br>108 F.3d 1311, 1315 (10th Cir. 1997) ("[I]f a sentencing court <br>accepts a Rule 11(e)(1)(C) agreement, it is bound by the agreement <br>and may not modify it".). <br>  In defense of his sentence, Moure argues that Rule 11(e) <br>does not prohibit the Court from unilaterally imposing a more <br>lenient sentence than that specified in a Rule 11(e)(1)(C) <br>agreement.  We disagree. <br>  The rule plainly contemplates that plea agreements <br>executed pursuant to subdivisions (e)(1)(A) or (C) are binding on <br>the district court.  "[C]ritical to a type (A) or (C) agreement is <br>that the defendant receive the contemplated charge dismissal or <br>agreed-to sentence." Fed. R. Crim. P. advisory committee's note <br>(1979 amendment). <br>  Moreover, the rule does not authorize a district court to <br>accept the agreement at a plea hearing, advise  the defendant that <br>he or she will be sentenced in accordance with its terms on the one <br>hand, and on the other disregard its own pronouncements and modify <br>the agreement in accordance with a personal notion of what <br>constitutes a just sentence. <br>  This interpretation is firmly supported by Rule 11(e)'s <br>history: <br>    The legislative history of 11(e)(3) shows that <br>  Congress wished to preclude a district court <br>  from accepting a plea agreement which provides <br>  for a specific sentence and then imposing a <br>  more lenient sentence than that provided for <br>  in the plea agreement.  The version of <br>  11(e)(3) proposed by the Supreme Court in 1974 <br>  stated that "the court shall inform the <br>  defendant that it will embody in the ... <br>  sentence the disposition provided for in the <br>  plea agreement or another disposition more <br>  favorable to the defendant than that provided <br>  for in the plea agreement."  The House <br>  Judiciary Committee then deleted the language <br>  "or another disposition more favorable to the <br>  defendant than that provided for in the plea <br>  agreement," and the House affirmed the <br>  committee's action by rejecting on the floor <br>  an amendment offered to restore the Supreme <br>  Court's version of the rule.  The Senate <br>  accepted the House's version of the rule. <br> <br>    By deleting the Supreme Court's "more <br>  favorable to the defendant" language, Congress <br>  evidenced its intent to require a district <br>  court to sentence a defendant in accordance <br>  with the plea agreement. <br> <br>  United States v. Semler, 883 F.2d 832, 833-34 (9th Cir. <br>1989)(internal citations omitted). <br>  Finally, we reject Moure's contention that while Rule <br>11(e) provides that the defendant may withdraw his plea if a higher <br>sentence is contemplated, it does not provide for the Government to <br>withdraw from the agreement if a lower sentence is envisioned by <br>the district court. "A district court which unilaterally reduces <br>the sentence provided for in an accepted plea agreement deprives <br>the prosecutor of the 'benefit of his bargain'. . .".  Semler, 883 <br>F.2d at 834, an action which he or she is specifically authorized <br>to appeal pursuant to statute.  See 18 U.S.C. 3742(c)(2). <br>  Accordingly, we remand the case to the district court <br>with instructions to vacate the sentence previously imposed, vacate <br>the dismissal of the other counts, and then either sentence the <br>defendant according to the terms of the plea agreement or reject <br>the agreement and afford the Government and Moure an opportunity to <br>renegotiate its terms (or in the alternative, try the case). <br>  REVERSED AND REMANDED.</pre>

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