UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4598
ALBERT LEE ROBBINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-99-61-F)
Argued: June 4, 2002
Decided: July 11, 2002
Before KING and GREGORY, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Vacated and remanded by unpublished opinion. Senior Judge Beezer
wrote the opinion, in which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: Joseph Michael McGuinness, THE MCGUINNESS
LAW FIRM, Elizabethtown, North Carolina, for Appellant. Christine
Witcover Dean, Assistant United States Attorney, Raleigh, North Car-
olina, for Appellee. ON BRIEF: John Stuart Bruce, United States
2 UNITED STATES v. ROBBINS
Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
BEEZER, Senior Circuit Judge:
Albert Lee Robbins ("Robbins") appeals his conviction and sen-
tence for conspiracy to distribute and to possess with intent to distrib-
ute cocaine. Robbins entered into a written plea agreement with the
government in which he promised to plead guilty in return for the
government’s promise to, among other things, recommend a sentence
at the lower end of the guidelines range. The government’s failure to
recommend a sentence as promised in the plea agreement constitutes
plain error. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. We vacate Robbins’ sentence and remand.
I
On August 24, 1999, Robbins and Cornell Robert Robbins
("Cornell") were indicted with conspiracy to distribute and to possess
with intent to distribute at least 5 kilograms of cocaine and 50 grams
of crack cocaine. The United States subsequently filed an information
indicating that it would seek an enhanced penalty under 21 U.S.C.
§ 851 based on Robbins’ and Cornell’s prior convictions.
Robbins entered into a written plea agreement. Among other
things, Robbins agreed to plead guilty to the conspiracy charge, waive
his right to appeal on most grounds and provide truthful information
to the government during debriefing. The government agreed to with-
draw the sentencing enhancement information and to recommend a
sentence at the lower end of the guidelines range.
UNITED STATES v. ROBBINS 3
The magistrate judge held a Rule 11 hearing in which Robbins
expressed his understanding of the charges against him, the provisions
of the plea agreement and the rights he would forgo by pleading
guilty.
The sentencing hearing was contentious. The probation officer sub-
mitted a presentence report that fixed Robbins’ offense level at 36 and
his criminal history category at I. Robbins objected to the report, chal-
lenging the accuracy of the government’s evidence and the credibility
of its witnesses. The government had informed the probation officer
that Robbins had not been truthful during debriefing.
Based on evidence presented by the government, the district court
found that Robbins’ offense involved more than 1.5 kilograms of
crack cocaine. Over the government’s objection, the district court
adjusted Robbins’ offense level downward for acceptance of responsi-
bility. The resultant guidelines range suggested Robbins be impris-
oned for 168 to 210 months. The government did not make, and the
district court did not ask for, a recommendation on where to sentence
Robbins within the guidelines range. Robbins did not object to the
government’s failure to make a sentencing recommendation. The dis-
trict court sentenced Robbins to 180 months in prison.
Robbins timely filed a notice of appeal. Robbins’ appointed coun-
sel for appeal submitted a brief pursuant to Anders v. California, 386
U.S. 738 (1967), suggested that there were no meritorious issues for
appeal and moved to withdraw.
II
We have examined the entire record for potential error in accor-
dance with Anders, 386 U.S. at 744. We focus on the government’s
failure to recommend a sentence as promised in the plea agreement.
Where, as here, the defendant fails to object to the government’s
alleged breach of a plea agreement during sentencing, we review for
plain error. United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir.
1997). Reversal is appropriate if "the breach was ‘so obvious and sub-
stantial that failure to notice and correct it affects the fairness, integ-
4 UNITED STATES v. ROBBINS
rity or public reputation of the judicial proceedings.’" Id. at 66
(quoting United States v. Fant, 974 F.2d 559, 565 (4th Cir. 1992)).
By not recommending a sentence at the lower end of the guidelines
range, the government did not fulfill its obligations under the plea
agreement. See, e.g., United States v. Peglera, 33 F.3d 412, 414 (4th
Cir. 1994) ("Given the express inclusion of [a promise to recommend
a lower sentence] in the plea agreement, there would seem to be little
question that the government’s [failure to do so] constituted a
breach."). The government’s failure to recommend a sentence as
agreed in the plea agreement is a material breach that undermines the
"honor of the government, public confidence in the fair administration
of justice, and the effective administration of justice." McQueen, 108
F.3d at 66. The government’s breach constitutes plain error. See id.
Case law requires us to remand this case to a different district judge
for resentencing. See United States v. Peglera, 33 F.3d 412, 415 (4th
Cir. 1994); see also Santobello v. New York, 404 U.S. 257, 263
(1971). Our decision in no way impugns the sentencing judge, who
competently conducted the proceedings.
We vacate the sentence and remand the case to a different district
judge for resentencing. Upon remand, the district court shall resen-
tence Robbins consistent with the requirements of this opinion.
VACATED AND REMANDED*
*Counsel’s motion to withdraw from representing Robbins is referred
to the district court for appropriate disposition.