United States v. Villa-Vazquez

FILED
United States Court of Appeals
Tenth Circuit

August 20, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-3160
JESUS RENE VILLA-VAZQUEZ,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 06-CR-10238-MLB)

Timothy J. Henry, Assistant Public Defender, Federal Public Defender Office,
Wichita, Kansas, for Defendant - Appellant.

Brent I. Anderson, Assistant United States Attorney, (Eric F. Melgren, United
States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff - Appellee.

Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Jesus Rene Villa-Vazquez was indicted in the United States District Court

for the District of Kansas on one count of illegal reentry after deportation for an

aggravated felony. He entered into a plea agreement that required the
government, among other things, to refrain from bringing further charges and to

recommend both a sentence reduction for acceptance of responsibility and a

sentence at the low end of the sentencing range under the United States

Sentencing Guidelines (USSG). The district court accepted his guilty plea but

elected to await the probation office’s presentence report (PSR) before deciding

whether to accept the plea agreement. Before sentencing, however, the

government objected to the PSR’s recommendation that Mr. Villa-Vazquez be

given a reduction in offense level for acceptance of responsibility, and it urged an

upward departure and variance from the Guidelines computation. The court

varied upward from the Guidelines because of Mr. Villa-Vazquez’s criminal

history and sentenced him to 120 months’ imprisonment. On appeal Mr. Villa-

Vazquez contends that (1) the government breached the plea agreement; (2) the

district court did not adequately explain its reasons for imposing an upward

variance; (3) the district court erred in relying on factual assertions in the PSR

that he contested; and (4) his criminal history did not support the upward

variance. We have jurisdiction under 28 U.S.C. § 1291. We reverse the sentence

on the first ground and remand for resentencing before a different judge. The

government was bound by the plea agreement after Mr. Villa-Vazquez’s guilty

plea was accepted by the court, and it blatantly violated its promises under the

agreement.

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I. BACKGROUND

Mr. Villa-Vazquez, a citizen of Mexico, was convicted in Kansas state

court in 2003 on a charge of criminal discharge of a firearm at a dwelling (the

firearm-discharge offense), see Kan. Stat. Ann. § 21-4219(b), and was deported to

Mexico in March 2006. On August 8, 2006, he was found in Topeka, Kansas,

without having obtained permission to reenter the United States.

On November 1, 2006, Mr. Villa-Vazquez was indicted for illegal reentry

after deportation for an aggravated felony, see 8 U.S.C. § 1326(a), (b)(2). He

then reached a plea agreement, which the government signed on January 12, 2007,

and which he and his counsel signed four days later. The government promised

that it would not file additional charges; that it would recommend either a 60-

month sentence if Mr. Villa-Vazquez received a 16-level enhancement under

USSG § 2L1.2(b)(1)(A), or a sentence at the low end of the Guidelines sentencing

range if he did not receive that enhancement; and that it would recommend an

offense-level reduction for acceptance of responsibility. The relevant language,

which appears in Paragraph 4, states:

In return for the defendant’s plea of guilty as set forth herein, the
United States Attorney for the District of Kansas agrees:

a. To not file any additional charges against the defendant
arising out of the facts forming the basis for the present
indictment.

b. There is an issue in this case as to whether the “crime of
violence” specific offense characteristic of U.S.S.G.

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 Section 2L1.2(b)(1)(A) applies, which would result in a
16-level enhancement. The parties intend to litigate that
issue, and if the defendant prevails, the United States
agrees to recommend the low-end guideline sentence,
and agrees that it will not recommend an appeal of any
Court finding in this case that § 2L1.2(b)(1)(A) does not
apply.

If the United States prevails and the Court applies the
16-level enhancement, the parties both agree to
recommend to the Court an incarceration sentence of 60
months, which is likely to constitute a modest downward
variance from what would be the applicable guideline
range.

If the Court applies the 16-level enhancement but
chooses to sentence the defendant to more than 60
months’ incarceration, the defendant reserves his right to
appeal the “crime of violence” sentencing issue, which
is a specific exception to the general appeal waiver set
out in paragraph 8 below.

c. To recommend the defendant receive a two (2) level
reduction in the applicable offense level under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. In addition, if
the defendant’s offense level is 16 or greater, the United
States will move at the time of sentencing for the
defendant to receive an additional one (1) level
reduction for acceptance of responsibility because the
defendant timely notified the government of his
intention to enter a plea of guilty.

R. Vol. I, Doc. 8 at 3–4. These commitments were conditional, however, on

Mr. Villa-Vazquez’s not breaching the agreement and his continuing to act in a

manner consistent with acceptance of responsibility. Regarding this latter

condition, Paragraph 4 of the agreement specifically provides:

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 The government’s obligations concerning its agreements listed in this
paragraph are contingent upon the defendant’s continuing
manifestation of acceptance of responsibility as determined by the
United States. If the defendant denies or gives conflicting statements
as to his involvement, falsely denies or frivolously contests relevant
conduct that the court determines to be true, willfully obstructs or
impedes the administration of justice as defined in U.S.S.G. § 3C1.1
(or willfully attempts to do so), or engages in additional criminal
conduct, the United States reserves the right to withdraw all of its
recommendations without breaching this agreement.

Id. at 4. Also, paragraph 10 of the agreement stated:

The defendant understands the United States will provide to the court
and the United States Probation Office all information it deems
relevant to determining the appropriate sentence in this case. This
may include information concerning the background, character, and
conduct of the defendant including the entirety of the defendant’s
criminal activities. The defendant understands these disclosures are
not limited to the count to which the defendant has pled guilty. The
United States may respond to comments made or positions taken by
the defendant or defendant’s counsel and to correct any
misstatements or inaccuracies. The United States further reserves its
right to make any recommendations it deems appropriate regarding
the disposition of this case, subject only to any limitations set forth
in this plea agreement. The defendant also has the right to provide
information concerning the offense and to make recommendations to
the court and the United States Probation Office.

Id. at 7–8.

At the plea hearing on January 16, 2007, the district court conducted an

extensive colloquy to establish that Mr. Villa-Vazquez was pleading, and had

entered into the plea agreement, knowingly, intelligently, and voluntarily.

Among the court’s questions was: “And you understand that you cannot withdraw

your plea and ask for a trial if you don’t like the sentence that you ultimately

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receive[?]” Mr. Villa-Vazquez answered, “Yes, sir.” R. Vol. II at 6–7.

Mr. Villa-Vazquez pleaded guilty. The court accepted the plea but said that it

was deferring decision on whether to accept the plea agreement:

I find that the Defendant has made his plea freely, voluntarily
and because he is guilty as charged; not out of ignorance, fear,
inadvertence or coercion; and with a full understanding of its
consequences. I further find that he has admitted the essential
elements of the crime charged and is mentally competent. Pursuant
to Rule 11 and Advisory Guideline 6B1.1, I will defer my decision to
accept or reject the plea agreement until I’ve seen the presentence
report.
All right. The Defendant will be sentenced on April 2nd at 10
a.m. If there’s nothing further, he’s remanded pending sentence.

Id. at 11.

On February 13, 2007, the initial draft of the PSR was distributed to the

parties. The PSR assigned Mr. Villa-Vazquez a base offense level of 8. See

USSG § 2L1.2(a). It resolved against the government the issue whether his

firearm-discharge offense was a “crime of violence,” and it increased his offense

level by 8, rather than 16, for that prior conviction. See id. § 2L1.2(b)(1)(C). It

then reduced the offense level by 2 for acceptance of responsibility, see id.

§ 3E1.1(a), leading to a total offense level of 14. Mr. Villa-Vazquez’s numerous

Kansas criminal and traffic convictions produced 11 criminal-history points, and

he received an additional 3 points because he had committed the federal offense

while on probation and less than two years after being released from prison. See

id. § 4A1.1(d), (e). His 14 criminal-history points placed him in criminal-history

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category VI. As a result, his Guidelines sentencing range was 37 to 46 months in

prison.

The PSR suggested, however, that this Guideline sentencing range might

not be appropriate. Citing Mr. Villa-Vazquez’s numerous prior criminal

convictions, it stated that an upward departure might be warranted on the ground

that his criminal-history category did not adequately reflect the seriousness of his

criminal history, see id. § 4A1.3(a) (providing for upward departure based on

inadequacy of criminal-history category), and that “[i]t appear[ed] highly likely

that Mr. Villa-Vazquez will continue criminal conduct in the future.” R. Vol. V

at 46. In addition, referencing police reports that Mr. Villa-Vazquez had been

involved with a street gang and had engaged in aggravated kidnaping, aggravated

battery, and domestic violence, the PSR stated that there may be grounds for a

sentence “outside the advisory guideline system.” Id. at 46.

Two matters in the PSR are of particular significance to this appeal. First,

the PSR determined (and the government did not later contest) that

Mr. Villa-Vazquez’s firearm-discharge offense was not a crime of violence. This

determination simplified the government’s commitments under paragraph 4(b) of

the plea agreement; now its sole presentencing commitment under the provision

was to “agree[] to recommend the low-end guideline sentence.” R. Vol. I, Doc. 8

at 3. Second, the PSR included information regarding an alleged fight in the

county jail between Mr. Villa-Vazquez and another inmate on November 6, 2006.

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Jail officials found Mr. Villa-Vazquez guilty of battery, so he was placed in

disciplinary segregation. Based on this information, the government’s response to

the PSR contended that it was no longer bound by the plea agreement. Citing the

clause in the plea agreement permitting it to withdraw from its obligations if

Mr. Villa-Vazquez “engage[d] in additional criminal conduct,” id. at 4, the

government objected to the reduction for acceptance of responsibility, arguing

that “[a] person who engages in criminal conduct while being held in jail during

the pendency of another case cannot be said to have ‘clearly demonstrated

acceptance of responsibility for his offense.’” R. Vol. V at 48 (brackets omitted)

(quoting USSG § 3E1.1(a)).

Mr. Villa-Vazquez’s response to the PSR objected to an upward departure

or variance on several grounds, including: (1) he denied the allegations in police

reports referenced in the PSR; (2) the alleged incidents involving aggravated

kidnaping and aggravated battery never led to arrest; and (3) the police reports

described in the PSR may not be used to support an upward departure or variance.

He also asserted that the alleged jail incident on November 6, 2006, could not

relieve the government of its promises under the plea agreement, because that

agreement was not entered into until months later, so the incident could not be

additional criminal conduct.

With respect to the issue of departure or variance, the government

passionately replied:

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 The defendant’s objection is meritless. Mr. Villa’s criminal history
may deserve enhanced scrutiny, which is all the probation office
suggests in [the PSR]. It is impossible to read Mr. Villa’s [PSR]
without coming away with a pit in one’s stomach in contemplat[ion]
of the sheer magnitude of his grotesque conduct. Not only should an
upward departure, and an upward “variance,” be considered, as the
probation office suggests, they should be applied to the degree that is
appropriate. That will be the request of the United States in its
sentencing memorandum.

Id. at 51.

On April 12, 2007, the district court sent the parties a letter addressing the

PSR and the parties’ responses. It expressed the court’s view, subject to further

authority from the government, that Mr. Villa-Vazquez was entitled to a two-level

reduction for acceptance of responsibility and that the government was obligated

to move for an additional one-level reduction. It also gave notice that it was

contemplating an upward departure or variance, and set forth the following

reasons for believing that a departure or variance was warranted:

[T]here is no limitation on the information which I may consider
concerning defendant’s background, character and conduct in
arriving at an appropriate sentence and in deciding whether to vary
under section 3553(a) and if so, the extent of the variance.
Defendant is now 27 years old. Since age 15, he has continually
violated the law. Many of the violations relate to traffic laws. When
viewed individually, the violations are not that serious but when
considered all together, they demonstrate that defendant has no
respect for the law and that his past involvement with authorities has
not deterred him from criminal conduct. Other violations, including
convictions, are more serious. Defendant has convictions for
misdemeanor domestic battery, possession of a concealed deadly
weapon, obstructing legal process, possession of marijuana, driving
while suspended (which includes information that defendant failed to
appear on at least two occasions), criminal discharge of firearm at an

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 occupied dwelling and failure to pay drug dealer tax. Defendant was
on probation when [he] illegally reentered the United States.
Defendant has failed to pay court-ordered child support. Taken
separately or together, these circumstances point to a defendant who
not only does not respect the laws of the state of Kansas and of the
United States (after all, the offense of conviction is aggravated
illegal reentry) but likewise a defendant who must receive a sentence
which affords adequate deterrence to further criminal conduct and
protects the public from further crimes. I am sure that [defense
counsel] will point out that when defendant is finished serving his
sentence, he will be deported with orders not to reenter the United
States. As counsel and the court are well aware from the literally
hundreds of cases in this court, deportation has proven (and is
increasingly proving) to be a useless act when a defendant is
determined to return to the United States. In defendant’s case, he
was deported on March 3, 2006. By at least August 8, 2006,
defendant was back in the United States illegally. Any or all of these
circumstances will justify a variance.

R. Vol. I, Doc. 12 at 3. It also said, “If the government seeks to get out of the

plea agreement, it will have to file a motion,” and it instructed the parties to file

by April 20 “simultaneous memoranda addressing the issues of departure and/or

variance.” Id.

The government’s memorandum (1) withdrew its prior statement that it was

not bound by the plea agreement; (2) withdrew its objection to a reduction for

acceptance of responsibility and, “pursuant to the terms of the plea agreement,”

recommended a three-level reduction, id., Doc. 13 at 1; (3) stated that it had “no

basis upon which to dispute” the PSR’s observations regarding the potential for

an upward departure or variance but withdrew its earlier comments in support of

an upward departure or variance, id. at 2; and (4) stated that it had “no dispute or

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disagreement with the Court’s legal and factual observations and analysis

contained in [the court’s April 12 letter],” id. In his memorandum

Mr. Villa-Vazquez made various arguments why the allegations contained in the

PSR did not support an upward departure or variance.

In a reply memorandum filed on April 26, the government stated that

“[n]othing in this response is intended to or should be construed to conflict with

or undermine the government’s stated intention in its initial response to abide by

the plea agreement herein, including the recommending of a sentence at the low

end of the applicable guideline range,”id., Doc. 15 at 1. But the reply proceeded

to present again an impassioned argument in favor of an upward departure or

variance, stating, in part:

The United States observes further, and as the defendant well knows,
that it is only a bizarre and unintended quirk that the defendant’s
total offense level is 13 instead of 21 (an eight-level difference).
The notion that shooting a gun into an occupied house with the intent
to intimidate a rival gang member isn’t a crime of violence that
elicits the 16-level enhancement is ludicrous . . . , and not even
[defense counsel] would suggest that reflects the intent of the
sentencing commission, yet that appears to be the result when
applying the “categorical” approach to the crime of conviction.
Nonetheless, a sentencing court could, should and would take that
into consideration in determining an appropriate sentence.

Id. at 2–3.

Mr. Villa-Vazquez responded the next day. Contending that the

government had breached the plea agreement, he sought specific performance—“a

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sentence of 33 months, the low end of the applicable guideline range”—or, in the

alternative, resentencing before a different judge. Id., Doc. 16 at 4.

The debate continued on May 3, when the government filed a “Sur-Reply.”

It contended: “There is nothing in the plea agreement in this case that precludes

the United States from filing a motion for upward departure (forgive the

emphasis). Therefore, nothing the government has said concerning the Court’s

consideration of an upward departure violates the plea agreement.” Id., Doc. 17

at 1. The government’s attempted explanation suggested that the “guideline

sentence” refers to the sentencing range after any departures from Guidelines

calculations:

In all his gyrating the defendant misses a crucial and controlling
point: While the United States has agreed “to recommend the low-
end guideline sentence” . . . , until the Court determines what the
appropriate guideline sentencing range is, there is no way the United
States knows what the low-end is. Whatever it turns out to be, the
United States has agreed to recommend it and advocate for it—it will
perform as it has agreed to in the plea agreement. No sentencing
hearing has occurred in this case, and comments made by the
government concerning the guideline sentence are not precluded by
the plea agreement if they relate to the Court’s determination of what
the appropriate guideline sentence is. The defendant assumed in his
response that the plea agreement had language that precluded a
motion for upward departure—an integral part of the proper
determination of an appropriate sentence—but it does not.

Id. at 1–2. It added that the government’s previous comments were made in

response to the district court’s “specific directive.” Id. at 2. Finally, on May 7

Mr. Villa-Vazquez filed a “Memorandum in Response to Government’s Sur-

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Reply,” stating that “[i]t is without question the defendant and defense counsel

understood ‘low-end’ to be of the applicable guideline range before the Court

were to depart or vary from said range.” Id., Doc. 18 at 2.

On May 16 the district court sent the parties a second letter, advising them,

among other things, that it did not believe that the government had breached the

plea agreement, because (1) the court had not accepted the plea agreement; (2) the

court provided the parties with notice of its intention to impose an upward

departure or variance; and (3) the government had expressed an intention to abide

by the terms of the plea agreement. In a May 18 response to this letter,

Mr. Villa-Vazquez reiterated his claim of breach and requested that the case be

transferred to a different judge for specific performance of the plea agreement.

The government did not file a response to the court’s May 16 letter.

At the sentencing hearing on May 21, 2007, the district court, although

stating that it had no concerns about the government’s commitment not to bring

further charges against Mr. Villa-Vazquez, rejected the plea agreement on the

ground that “it would call for a too lenient sentence.” R. Vol. III at 20. It offered

Mr. Villa-Vazquez an opportunity to withdraw his guilty plea, which he declined.

The court did not rule on whether the government had honored its promises under

the plea agreement, explaining, “[T]he plea agreement was never binding in the

first place because I had not accepted it. A plea agreement is neither binding nor

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enforceable until it is accepted in open court. You cannot breach an agreement

that is not binding.” Id.

Turning to the imposition of sentence, the district court entertained

argument on the possibility of an upward variance. The government stated that it

did not have an objection to an upward departure or variance, adding that “all the

methods for variance or departures that [were outlined in the PSR] appeared

appropriate, appeared to be consistent with Tenth Circuit law, appeared to be

valid in their authorizing the Court to do that which it indicated that it was

considering doing.” Id. at 30. In response, defense counsel repeated his previous

written objections. He urged a sentence within the PSR’s calculation of the

Guidelines range, which was 37-46 months’ imprisonment. The court varied

upward, sentencing Mr. Villa-Vazquez to 120 months’ imprisonment.

II. DISCUSSION

A. Breach of the Plea Agreement

Mr. Villa-Vazquez contends that the government breached the plea

agreement (1) by objecting to the offense-level reduction for acceptance of

responsibility and (2) by supporting the PSR’s recommendation for an upward

departure or variance. We review de novo a claim that the government has

breached a plea agreement. United States v. Rodriguez-Delma, 456 F.3d 1246,

1250 (10th Cir. 2006). “Where the Government obtains a guilty plea which is

predicated in any significant degree on a promise or agreement with the U.S.

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Attorney, such promise or agreement must be fulfilled to maintain the integrity of

the plea.” United States v. Stemm, 847 F.2d 636, 637 (10th Cir. 1998). “This

Circuit uses a two-step analysis to determine whether the United States violated a

plea agreement: the sentencing court should 1) examine the nature of the

promise; and 2) evaluate the promise in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” United States v.

Guzman, 318 F.3d 1191, 1195–96 (10th Cir. 2003). “General principles of

contract law define the government’s obligations under the agreement, looking to

the express language and construing any ambiguities against the government as

the drafter of the agreement.” Id. at 1195.

The government acknowledges that it promised “to recommend that the

defendant receive a two-level reduction for acceptance of responsibility, and . . .

to recommend a low-end guideline sentence . . . .” Aplee. Br. at 1–2 (citation to

record omitted). Yet the government did precisely the opposite in response to the

PSR. Citing Mr. Villa-Vazquez’s alleged jail misconduct, the government

“urge[d] the probation office to remove all three points for acceptance of

responsibility . . . .” R. Vol. V at 48. In addition, the government supported the

PSR’s recommendation for an upward departure or variance. To repeat the

government’s language:

Mr. Villa’s criminal history may deserve enhanced scrutiny . . . . It
is impossible to read Mr. Villa’s [PSR] without coming away with a
pit in one’s stomach in contemplat[ion] of the sheer magnitude of his

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 grotesque conduct. Not only should an upward departure, and an
upward ‘variance,’ be considered, as the probation office suggests,
they should be applied to the degree that is appropriate.

Id. at 51. Then, responding to Mr. Villa-Vazquez’s sentencing memorandum, the

government expressed its displeasure that Mr. Villa-Vazquez’s firearm-discharge

offense supported only an 8-level, rather than a 16-level, increase in his offense

level. It wrote, in an apparent attempt to convince the court to cure this “error”

by varying from the Guidelines:

The United States observes further, and as the defendant well knows,
that it is only a bizarre and unintended quirk that the defendant’s
total offense level is 13 instead of 21 (an eight-level difference).
The notion that shooting a gun into an occupied house with the intent
to intimidate a rival gang member isn’t a crime of violence that
elicits the 16-level enhancement is ludicrous (as outlined in P[SR]
¶ 55, p. 21), and not even [defense counsel] would suggest that
reflects the intent of the sentencing commission, yet that appears to
be the result when applying the “categorical” approach to the crime
of conviction. Nonetheless, a sentencing court could, should and
would take that into consideration in determining an appropriate
sentence.

R. Vol. I, Doc. 15 at 2–3. At the sentencing hearing the government told the

court, “[A]ll the methods for variance or departures that [were outlined in the

PSR] appeared appropriate, appeared to be consistent with Tenth Circuit law,

appeared to be valid in their authorizing the Court to do that which it indicated

that it was considering doing. So I think we have and we don’t have any

objection to those.” R. Vol. III at 30.

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 Remarkably, the government nevertheless contends that it “stood by” its

promises under the plea agreement and merely provided the district court with

information pertaining to relevant conduct. Aplee. Br. at 21. We beg to differ.

The agreement would clearly convey to any defendant that the government

promised not to object to the reduction for acceptance of responsibility and not to

support an upward departure or variance. With regard to the second promise, the

agreement states that the government would recommend “the low-end guideline

sentence.” R. Vol. I, Doc. 8 at 3. The adjective “low-end” presupposes that there

is a range of guideline sentences. But the “guideline range” would not ordinarily

be interpreted to mean the sentence arrived at after an upward departure or

variance. On the contrary, the Guidelines defines Departure (except in the

context of a change in criminal-history category under § 4A1.3) as “imposition of

a sentence outside the applicable guideline range or of a sentence that is

otherwise different from the guideline sentence.” USSG § 1B1.1 cmt. n.1(E).

This language clearly implies that the “guideline range” is determined before any

decision on departure. 1 Moreover, there may well be no specified guideline range

after a variance. Judges who vary from the Guidelines generally do not declare a

variance sentencing range before imposing sentence. Nothing in this case would

1
The same can be said of the Guidelines language regarding a departure that
changes the defendant’s criminal-history category. In that context the definition
of Departure is “the assignment of a criminal history category other than the
otherwise applicable criminal history category to effect a sentence outside the
applicable guideline range.” USSG § 1B1.1 cmt. n.1(E).

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have suggested to Mr. Villa-Vazquez that the phrase “low-end guideline

sentence” had an idiosyncratic meaning. The agreement itself (in a provision

mooted by the determination that Mr. Villa-Vazquez’s firearm-discharge offense

was not a crime of violence) speaks of a “downward variance from what would be

the applicable guideline range.” R. Vol. I, Doc. 8 at 3. This language would be

peculiar if the “applicable guideline range” is the range after all departures and

variances. Moreover, any defendant would think it an empty promise for the

government to say that it would recommend the “low-end guideline sentence,” id.,

if the government could urge an upward departure or variance from the

Guidelines range. The government’s argument that it honored its promises reeks

of the lamp.

The government seeks to be excused from complying with its promises on

the ground that it was simply responding to the court’s April 12 letter. But the

government had initially breached its promises in response to the PSR and

Mr. Villa-Vasquez’s objection to an upward departure or variance; this was before

the district court had requested its views. And in any event, the court’s letter

could not justify the government’s advocacy. See United States v. Scott, 469 F.3d

1335, 1339 n.2 (10th Cir. 2006) (government breached plea agreement by arguing

for two sentencing enhancements even though it was specifically directed by

district court to comment on possible enhancements); United States v. Brye, 146

F.3d 1207, 1212–13 (10th Cir. 1998). The government should have explained to

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the court that it had made promises in the plea agreement and then limited itself

to what was permitted by Paragraph 10 of the plea agreement—namely, a “legally

neutral” and “non-argumentative” presentation of facts. Rodriguez-Delma, 456

F.3d at 1250–51.

The government also claims to have retracted its statements. It certainly

made an effort in that regard in its initial memorandum in response to the district

court's April 12 letter. But the government's reply memorandum of April 26 was

a return to advocacy for a departure or variance, and its surreply of May 3 clearly

conveyed its intent when it stated that the plea agreement did not preclude the

government from seeking an upward departure. At best, the government did not

repeat the most egregious violations of the plea agreement; but that is far from an

adequate retraction. See United States v. Cachucha, 484 F.3d 1266, 1271 (10th

Cir. 2007) (breach occurred even though prosecutor did not repeat offending

comments at second sentencing hearing). Nor was it adequate for the

government to say merely that it intended to abide by the agreement. See United

States v. Vaval, 404 F.3d 144, 153 (2d Cir. 2005). We need not decide when a

retraction could cure a breach of a plea agreement. See United States v. Amico,

416 F.3d 163, 165 (2d Cir. 2005) (retraction was sufficient).

Alternatively, the government contends that it could not have breached the

agreement because the agreement was not binding until the district court accepted

it, which it did not. This contention requires us to answer a novel question: Is a

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plea agreement binding on the government after the court has accepted the

defendant’s guilty plea but before the court has accepted the plea agreement

itself? If we ignore the context of the decisions, we can find language in the case

law that gives conflicting answers. For example, in Santobello v. New York, 404

U.S. 257 (1971), which held (as a matter of constitutional law) that the defendant

was entitled to relief because the state had breached the plea agreement, the Court

said, “[W]hen a [guilty] plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.” Id. at 262. This statement would

seem to undermine the government’s argument here. But there was no issue in

that case regarding court acceptance of the plea agreement. On the other hand,

we recently said, “Courts have held that under [Fed. R. Crim. P.] 11, a plea

agreement . . . must be accepted by the court before it is binding.” United States

v. Novosel, 481 F.3d 1288, 1292 (10th Cir. 2007) (brackets and internal quotation

marks omitted). The district court in this case relied on that statement in

concluding that the government had not breached an enforceable plea agreement

with Mr. Villa-Vazquez. In Novosel, however, the issue was whether the plea

agreement had properly been modified, and the modification occurred before the

guilty plea had been accepted. Thus, we had no occasion to discuss the

enforceability of a plea agreement during the interval between acceptance of the

plea and acceptance of the plea agreement.

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 Indeed, the parties have not cited to us any case in point, nor have we

found any. The Supreme Court has left the issue open. In United States v. Hyde,

520 U.S. 670 (1997), the Court held that the defendant was bound by his guilty

plea once it was accepted by the court, even though the court had not accepted the

plea agreement. But the Court expressly stated that it was not deciding whether

the government was also bound once the plea was accepted. See id. at 678 n.3.

Nevertheless, governing law leads us to conclude that the plea agreement was

binding on the government once Mr. Villa-Vazquez’s plea was accepted.

To some extent the enforceability of a plea agreement is a matter of

constitutional due process. See Santobello, 404 U.S. at 257. But that is not all.

“The law governing the interpretation of plea agreements is an ‘amalgam of

constitutional, supervisory, and private contract law concerns.’” Novosel, 481

F.3d at 1291 (brackets omitted) (quoting United States v. Wood, 378 F.3d 342,

348 (4th Cir. 2004)). We have recognized that the “[r]ules of contract law inform

[not only] the interpretation [but also the] enforcement of promises in a plea

agreement.” United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th

Cir. 1997).

“In most cases, contract principles will be wholly dispositive because
neither side should be able, any more than would be private
contracting parties, unilaterally to renege or seek modification
simply because of uninduced mistake or change of mind. A plea
agreement, however, is not simply a contract between two parties. It
necessarily implicates the integrity of the criminal justice
system . . . .”

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Novosel, 481 F.3d at 1292, (quoting Wood, 378 F.3d at 348 (brackets and internal

quotation marks omitted)). In particular, the government has a “heightened

responsibility [that] extends beyond the plea negotiation to all matters relating to

the plea agreement.” Wood, 378 F.3d at 348.

Also, our decision must be informed by Fed. R. Crim. P. 11, which

addresses pleas and plea bargains. The Rule requires the court to accept a guilty

plea only after engaging in an extensive colloquy advising the defendant of his

rights and questioning the defendant to be sure he understands those rights and is

entering the plea voluntarily. See Fed. R. Crim. P. 11(b). Any plea agreement

must be disclosed to the court. See id. Rule 11(c). The Rule specifically treats

three types of promises that the government may make in an agreement:

[T]he plea agreement may specify that an attorney for the
government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant's request,
that a particular sentence or sentencing range is appropriate or
that a particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does not apply
(such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the
appropriate disposition of the case, or that a particular
provision of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply (such a
recommendation or request binds the court once the court
accepts the plea agreement).

Id. Rule 11(c)(1). The court cannot reject an agreement described in

subdivision B, such as an agreement to recommend a particular sentence or the

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application of a particular sentencing factor; but it must advise the defendant that

the court may reject the recommendation and that such rejection does not entitle

the defendant to withdraw the plea. See id. Rule 11(c)(3)(B). As for a

government promise of a type described in subparagraph A (such as a promise not

to bring other charges) or C (such as a promise to agree that the plea is

conditional on imposition of a particular sentence), the court must accept or reject

the agreement; and if it rejects the agreement, it must give the defendant an

opportunity to withdraw the plea. See id. Rule 11(c)(5). The court need not

decide at the time of the plea whether or not to accept the agreement; it may, and

generally does, await the presentence report before deciding. See id. Rule

11(c)(3)(A); USSG § 6B1.1 cmt. After the plea is accepted the defendant can

withdraw it before sentencing only upon showing “a fair and just reason,” Fed. R.

Crim. P. 11(d)(2)(B), unless the court rejects the plea agreement, see id. Rule

11(d)(2)(A). See also Hyde, 520 U.S. 670.

Under general contract principles a plea agreement would be enforceable

against the government once the defendant’s plea of guilty is accepted in

accordance with Rule 11. A totally executory plea agreement, whose promises

have not been performed in any way by either party, may not be enforceable. See

Mabry v. Johnson, 467 U.S. 504 (1984) (holding that state prisoner did not have

constitutional right to enforce executory plea agreement). But “the ensuing guilty

plea . . . implicates the Constitution,” id. at 507–08, and also solidifies the

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government’s obligations under contract law. Once the defendant’s plea is

accepted, the defendant has detrimentally relied on the agreement. The defendant

cannot escape the plea without showing “a fair and just reason” unless (and until)

the plea agreement is rejected by the court. Fed. R. Crim. P. 11(d). Some courts

have suggested that a plea agreement may become enforceable even before the

defendant enters a guilty plea if the defendant otherwise detrimentally relies on

the agreement. See United States v. Wells, 211 F.3d 988, 994 n.3 (6th Cir. 2000);

United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992). We need not go so

far in this case. It is enough to say that in general a defendant, by entering an

accepted guilty plea, sufficiently relies to his detriment on a plea agreement that

the government is bound by its promises in the agreement, at least until the

agreement is set aside.

Perhaps public-interest concerns could make an agreement unenforceable

against the government in special circumstances. For example, it may be

discovered before sentencing that the charge to which the defendant pleaded does

not state a criminal offense, so the agreed dismissal of all other charges would

totally free the defendant of criminal responsibility. Cf. United States v.

McGovern, 822 F.2d 739, 742, 747 (8th Cir. 1987) (such circumstance arose but

acceptance of plea had been conditional—subject to review of PSR). We see no

public interest, however, in allowing the government to breach its promises

regarding sentencing recommendations simply because the court has not yet

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accepted the plea agreement. After all, the court may decide to reject the plea

agreement because it is persuaded to do so by government statements that were

contrary to its promises in the plea agreement. Indeed, the Eighth Circuit, while

stating that a “defendant is not justified in relying substantially on the terms of

the plea agreement until the trial judge approves it and accepts the guilty plea,”

id. at 746, nevertheless said that “the government must, unless and until the court

rejects the plea, honor in good faith its obligations under the agreement,” id. at

744. The government has not presented to us, nor have we found, any modern

case that has held that the government is not bound by a plea agreement after the

court has accepted a guilty plea predicated on the agreement. Accordingly, we

hold that, absent extraordinary circumstances, once a defendant’s guilty plea has

been accepted by the court, the government is bound by its plea-agreement

promises regarding sentencing recommendations even if the plea agreement has

not yet been accepted by the court, and even if it is ultimately rejected by the

court (although, of course, after rejection the government is no longer bound with

respect to making later recommendations).

Moreover, we observe that when the district court said that it was rejecting

the plea agreement, its “rejection” was not in accordance with Rule 11.

Rule 11(c)(3)(A) authorizes the court to reject a plea agreement only to the extent

that it is of a type described in subparagraph (A) or (C) of Rule 11(c)(1), both of

which address promises that bind the court. Subparagraph A concerns

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government promises not to bring charges; subparagraph C concerns agreements

that the plea is conditional on, for example, imposition of a particular sentence.

Although the district court stated that it was rejecting the plea agreement, it did

not reject any provision that would come under subparagraph A or C. The only

such provision in the agreement was the government’s promise not to bring

further charges against Mr. Villa-Vazquez. But the court clearly accepted that

provision, saying:

I want the record to be really clear about this, that’s the part that
talks about dismissing other charges, what-not, nothing that I say or
do here is to indicate that I have any disagreement whatsoever with
the Government’s exclusive decisions whether to charge or not
charge or dismiss charges. All I said in my earlier letter was that it
appeared that this was such an agreement; but my rationale here
doesn't have anything to do with Rule [11(c)(1)(A)].

R. Vol. III at 17.

What the district court rejected was the government’s recommendation that

Mr. Villa-Vazquez be sentenced at the bottom of the applicable guideline

sentencing range. The government’s recommendation (unlike a promise not to

bring charges, see Fed. R. Crim. P. 11(c)(1)(A), or an agreement that the plea is

conditional on a specific sentence, see id. Rule 11(c)(1)(C)), was not binding on

the court. Accordingly, the court certainly could refuse to follow the

recommendation. But such refusal is not a rejection of the agreement itself. The

court had no authority to reject the agreement just because it disagreed with the

nonbinding recommendation. The government’s promise to recommend a

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sentence at the Guidelines’s minimum was a promise that comes under

subdivision B of Rule 11(c)(1), which is not subject to court approval. The

court’s sole obligation arising from a subdivision B promise was satisfied in this

case: the court informed Mr. Villa-Vazquez at the plea hearing that he had no

right to withdraw his plea if the court did not follow the sentencing

recommendation. See id. Rule 11(c)(3)(B) (requiring that defendant be so

informed). We need not decide whether a sentencing court has authority to reject

a plea agreement on some ground not stated in Rule 11, because there was no

such rejection in this case. (We should also point out that because the court did

not in fact reject the plea agreement in accordance with Rule 11, it had no

authority to allow Mr. Villa-Vazquez to withdraw his plea on the ground that his

plea agreement had not been accepted. Withdrawal was permissible only for “a

fair and just reason.” Id. Rule 11(d)(2)(B).) It would be particularly

inappropriate to adopt the government’s view that it was not bound by the plea

agreement until it was accepted by the court, when (1) the breach of the plea

agreement occurred after the plea was accepted and (2) the plea agreement

ultimately was accepted.

Because we conclude that the government breached the plea agreement, we

turn to the question of remedy. The district court offered Mr. Villa-Vazquez the

opportunity to withdraw his plea. But that was not adequate. We grant the

remedy of resentencing before a different judge when the defendant does not seek

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to withdraw his guilty plea, see Cachucha, 484 F.3d at 1271, unless the defendant

requests resentencing before the same judge, in which case we grant him that

remedy, see United States v. Vandam, 493 F.3d 1194, 1206 (10th Cir. 2007).

When the defendant is content with the agreement and does not wish to go to

trial, it is not proper to require that he either go to trial or take his lumps from the

government’s breach. As the First Circuit said in a similar situation,

“[P]ermitting a judge to vacate a plea over defendant’s objection on breach by the

prosecution allows the government to back out of its agreement at will and obtain

a trial.” United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990); see United

States v. Nolan-Cooper, 155 F.3d 221, 241 (3rd Cir. 1998) (same); United States

v. Partida-Parra, 859 F.2d 629, 635 (9th Cir. 1988) (same).

We conclude this discussion with two comments. First, requiring

resentencing before a new judge is not intended to reflect upon the fairness of the

sentencing judge, whose actions did not cause this result. See Cachucha, 484

F.3d at 1271. Second, we recognize that resentencing before a new judge cannot

truly make Mr. Villa-Vazquez whole. The new judge cannot be entirely insulated

from the government’s misconduct. This reality makes that misconduct all the

more reprehensible. Our present view, however, is that the public interest and the

ends of justice require that the new judge be granted the discretion afforded under

the original plea agreement. Mr. Villa-Vazquez is not entitled to a ruling that the

new judge must accept the plea agreement’s recommendation.

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 In light of our disposition, we need not address Mr. Villa-Vazquez’s other

contentions on appeal.

III. CONCLUSION

We REMAND for resentencing before a different judge.

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