UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAGDALENO SANTIBANEZ-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00018-MR-DLH-1)
Submitted: June 11, 2013 Decided: July 5, 2013
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Henderson Hill, Executive Director, Ann L. Hester, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Magdaleno Santibanez-Hernandez pled guilty to
unlawfully reentering the United States after removal as an
aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). Santibanez-Hernandez pled guilty pursuant to an oral
plea agreement, in which the Government agreed not to oppose the
federal sentence running concurrently with Santibanez-
Hernandez’s undischarged state sentence. On appeal, Santibanez-
Hernandez argues that the Government breached the plea agreement
by initially advocating for imposition of a consecutive
sentence. We agree and, therefore, vacate the sentence and
remand.
At sentencing, Santibanez-Hernandez’s counsel argued
in support of a concurrent sentence. When the court sought the
Government’s position on sentencing, the prosecutor responded
that the time that [Santibanez-Hernandez] received
from the state, as well as the time that the [c]ourt
may impose today is warranted. It’s a situation where
Mr. Hernandez has engaged in drug trafficking for a
long time, has received sentences and has not learned
his lesson. And we do believe that there is a
deterrent value in running his sentences consecutively
. . . .
(J.A. 91). 1
1
“J.A” refers to the joint appendix filed by the parties.
2
After Santibanez-Hernandez’s counsel noted that the
parties had agreed during plea negotiations that the Government
would not oppose a concurrent sentence, the Government
acknowledged its mistake. The court suggested that the
Government may wish to strike its argument, and the Government
agreed, acknowledging that its argument was inconsistent “with
[its] earlier position in this case.” (J.A. 93). The district
court proceeded to sentence Santibanez-Hernandez to a term of
fifty months in prison. Concluding that the Sentencing
Guidelines generally favored consecutive sentences, the court
declined to direct that the federal sentence run concurrently
with Santibanez-Hernandez’s outstanding state sentence, even
though it recognized that “ordinarily this [c]ourt would give
much credence to . . . [a plea] agreement.” (J.A. 96).
Where, as here, a party raised the issue of breach in
the district court, “we review the district court’s factual
findings for clear error and its application of principles of
contract interpretation de novo.” United States v. Lewis, 633
F.3d 262, 267 (4th Cir. 2011) (internal quotation marks
omitted); see United States v. Diaz-Jimenez, 622 F.3d 692, 693-
94 (7th Cir. 2010) (finding defendant’s objection sufficient to
preserve issue for appeal despite failure to renew objection
after government’s attempt to cure breach); cf. Puckett v.
United States, 556 U.S. 129, 133 (2009) (applying plain-error
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standard where “at no time during [sentencing] did [defense]
counsel object that the Government was violating its obligations
under the plea agreement”).
A plea agreement is breached when a government promise
that induces the plea goes unfulfilled. See Santobello v. New
York, 404 U.S. 257, 262 (1971). By initially opposing a
concurrent sentence, the Government here did not fulfill its
obligations under the plea agreement. See United States v.
Peglera, 33 F.3d 412, 414 (4th Cir. 1994).
After Santibanez-Hernandez’s counsel informed the
sentencing court of the Government’s promise, the Government
withdrew its argument. This is not sufficient to excuse the
Government’s failure to comply with its promise made in the plea
agreement; “resentencing is required under Santobello regardless
of the judge’s awareness of the government’s ‘real’ position as
indicated in the plea agreement.” Id. (citing United States v.
Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990)). “The Court in
Santobello nowhere suggested that a mere withdrawal of the
offending recommendation with substitution of the agreed
recommendation would have been a sufficient remedy.” Kurkculer,
918 F.2d at 302. “To excuse plea agreement breaches in light of
later attempted mitigation would lessen the government’s duty of
strict compliance” and thereby compromise the integrity of the
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judicial system. United States v. Alcala-Sanchez, 666 F.3d 571,
577 (9th Cir. 2012).
Because the Government breached the plea agreement, we
grant Santibanez-Hernandez the requested specific performance,
vacate his sentence, and remand for resentencing before a
different district judge. 2 We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED
2
Our direction that resentencing proceed before a different
district judge is consistent with this court’s usual practice
when a breach of a plea has occurred. See, e.g., United States
v. Dawson, 587 F.3d 640, 648 (4th Cir. 2009). We emphasize
“that this is in no sense to question the fairness of the
sentencing judge.” Santobello, 404 U.S. at 263.
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