           Case: 12-14522   Date Filed: 06/03/2013    Page: 1 of 4


                                                     [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14522
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:11-cr-20536-JAL-2



UNITED STATES OF AMERICA,



                                                              Plaintiff-Appellee,

                                  versus

CALIXTO NODAL PEREZ,

                                                          Defendant-Appellant.

                      ________________________

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

                              (June 3, 2013)

Before CARNES, BARKETT, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-14522     Date Filed: 06/03/2013    Page: 2 of 4


      Calixto Perez appeals his 80-month sentence of imprisonment that the

district court imposed after he pled guilty to conspiring to import marijuana, in

violation of 21 U.S.C. § 963. As part of his plea agreement, the government

agreed to recommend a sentence at the low end of the Sentencing Guidelines range

that the district court calculated. At the sentencing hearing, the district court

calculated a guidelines range of 70 to 87 months’ imprisonment. The government

thereafter argued that a previous Florida state sentence of 78 months’

imprisonment for conspiring to import marijuana failed to deter Perez’s criminal

conduct, and proffered that a within-guidelines sentence was appropriate. On

appeal, Perez argues that the government breached his plea agreement by failing to

recommend a sentence at the low end of his guidelines range, and requests that we

vacate his sentence and remand to the district court for resentencing before a

different judge.

      We review de novo whether the government breached a plea agreement.

United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). The government

is bound by the material promises that it makes to a defendant in a plea agreement

that induce the defendant to plead guilty. United States v. Taylor, 77 F.3d 368, 370

(11th Cir. 1996). Whether the government breached the plea agreement is judged

against the defendant’s reasonable understanding of the agreement at the time that

he entered his plea. Id. It is reasonable for a defendant to construe the


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government’s promise to recommend a certain sentence as including a promise not

to advocate for a greater sentence, as the advocacy of a position requiring a greater

sentence is “flatly inconsistent” with a promise to recommend a lesser sentence.

See id. Thus, in Taylor, we held that the government breached its promise to

recommend a 10-year sentence for possessing marijuana with intent to distribute

when it affirmatively supported the presentence investigation report’s position that

Taylor’s attempt to import 500 kilograms of cocaine was relevant conduct, which

had the effect of raising Taylor’s guidelines range to 188 to 235 months’

imprisonment. See id. at 369-71.

      Two remedies exist upon the government’s breach of a plea agreement. Id.

at 371-72. We either may leave the defendant’s plea intact and remand to the

district court for resentencing before a different judge, or we may permit the

defendant to withdraw his plea. Id. Even where the defendant expresses a

preference for a particular remedy, the choice among remedies lies within our

discretion. See id. at 372. Nonetheless, we do not favor permitting a defendant to

withdraw his plea, and specific performance of the plea agreement is particularly

appropriate where no question exists that the defendant knowingly and voluntarily

entered his plea. See United States v. Johnson, 132 F.3d 628, 631 (11th Cir. 1998).

      Here, the government breached the plea agreement by failing to recommend

a sentence at the low end of the guidelines range that the district court calculated,


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and by advocating a position contrary to Perez’s reasonable understanding that it

would not advocate for a sentence that fell above the low end of his guidelines

range. Accordingly, we vacate Perez’s sentence, and remand to the district court

for resentencing before a different judge.

      VACATED AND REMANDED.




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