United States v. Marchena-Silvestre

United States Court of Appeals
For the First Circuit

No. 14-1404

UNITED STATES OF AMERICA,

Appellee,

v.

DAN CARLOS MARCHENA-SILVESTRE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Kayatta, Selya, and Dyk,*
Circuit Judges.

Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
Linda J. Thompson, with whom Robert F. Hennessy and Thompson
& Thompson, PC, were on brief, for appellant.

October 6, 2015

____________________

*Of the Federal Circuit, sitting by designation.
 KAYATTA, Circuit Judge. Dan Carlos Marchena-Silvestre

("Marchena-Silvestre") appeals his seventy-two month sentence

following his guilty plea to a charge of unlawfully possessing

automatic weapons. After careful review of the record, we

conclude that the district court's sentencing determination was

infected by plain error.

I. Background

Since Marchena-Silvestre's sentence followed a guilty

plea, we draw the facts from the plea agreement, the change-of-

plea colloquy, the presentence investigation report (PSR), and the

sentencing hearing transcript. See United States v. Almonte-

Nuñez, 771 F.3d 84, 86 (1st Cir. 2014). We rehearse only the

facts necessary to form a basis for our analysis.

A. The Offense and Indictment

On October 24, 2013, Puerto Rico law enforcement agents

searched Marchena-Silvestre's apartment pursuant to a search

warrant. The agents discovered and seized the following arsenal

of firearms and ammunition: (1) an AR-15 assault rifle, unlawfully

modified to fire in full automatic mode, equipped with an unlawful

short barrel, and loaded with one round in the chamber and thirty-

seven rounds in the magazine; (2) a Glock pistol, unlawfully

modified to fire in full automatic mode, loaded with one round in

the chamber and twelve rounds in the magazine; and (3) an

additional 127 rounds of ammunition for the two firearms.

- 2 -
 After waiving his Miranda rights, Marchena-Silvestre

admitted that the firearms and ammunition belonged to him, that he

purchased both firearms, and that he also purchased and installed

a metal chip that enabled the Glock pistol to fire in full

automatic mode. The investigating agents also discovered that the

Glock pistol had been stolen from its registered owner. Less than

a week after the seizure, a federal grand jury returned an

indictment charging Marchena-Silvestre with possessing a machine

gun in violation of 18 U.S.C. § 922(o) and possessing a stolen

firearm in violation of 18 U.S.C. § 922(j).

B. The Plea Agreement

Pursuant to a written plea agreement (the Agreement)

with the government, Marchena-Silvestre agreed to plead guilty to

possessing the machine gun. In turn, the government agreed to

dismiss the charge that he possessed a stolen firearm, so long as

Marchena-Silvestre complied with the Agreement's terms.

Paragraph 7 of the Agreement, entitled "Applicability of

United States Sentencing Guidelines," contained a chart of

"Sentencing Guidelines Calculations" for 18 U.S.C. § 922(o) that

Marchena-Silvestre and the government agreed to "submit" to the

court. The chart included a base offense level of 18, see U.S.S.G.

§ 2K2.1(a)(5), a two-point upward enhancement for a stolen

firearm, see U.S.S.G. § 2K2.1(b)(4)(A), and a three-point

reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1,

- 3 -
to arrive at a total adjusted offense level of 17. Since the

parties did not agree to a criminal history category, the chart

then set out the applicable guideline sentencing ranges for

criminal history categories I (24–30 months) through VI (51–63

months). Paragraph 9, entitled "Sentence Recommendation,"

provided that "the government reserves the right to request a term

of imprisonment equal to the higher end of the applicable

guidelines range and the defendant will request a term of

imprisonment equal to the lower end of the applicable guidelines

range," and that "any recommendation by either party for a term of

imprisonment above or below the stipulated sentence recommendation

constitutes a material breach of the . . . Agreement." The

stipulated sentencing recommendations did not bind the district

court, and Marchena-Silvestre only retained the right to appeal in

the event that the district court did not sentence him within the

stipulated guideline sentencing range.

C. The Presentence Investigation Report

The district court accepted Marchena-Silvestre's guilty

plea at the plea colloquy, and instructed the probation department

to submit a PSR. The PSR departed from the Agreement by

recommending a base offense level of 20 rather than 18, due to the

added consideration that the defendant's unlawful use of

controlled substances made him a "prohibited person" under the

guidelines. See U.S.S.G. § 2K2.1(a)(4)(B). The PSR applied the

- 4 -
same two base level adjustments as recommended by the Agreement,

resulting in a total offense level of 19 (rather than 17 as

calculated in the Agreement).

The PSR also detailed Marchena-Silvestre's criminal

history: In 2009, he was convicted of carrying a firearm in

violation of Puerto Rico's Weapons Law (a misdemeanor for which he

was fined $300); and in 2013 he was convicted of illegally

occupying property owned by the Puerto Rico Housing Department,

resulting in a $50 fine. The two convictions resulted in a

criminal history category of I. Cross-referencing that category

with the total offense level of 19, the PSR recommended a guideline

sentencing range of 30 to 37 months. See U.S.S.G. ch. 5 pt. A

(Sentencing Table). In his sentencing memorandum, Marchena-

Silvestre stated that he had "no objections" to the PSR.

D. The Sentencing Hearing

The sentencing hearing began with the government

informing the court that it would request a sentence at the "high

end range of the guideline sentence." The court proceeded to

summarize the facts of the case based on the PSR, noting the

serious and illegal arsenal at the heart of the case. The court

then moved to reviewing Marchena-Silvestre's criminal history,

noting that a combination of prior offenses without serious

penalties "is what really strikes you when you see this kind of

thing." The court noted what it thought were two prior firearms

- 5 -
charges: one a misdemeanor conviction for carrying a firearm

without a license, the other an arrest for carrying what the court

described as a "nine millimeter nickel plated pistol." In fact,

the second charge as described in the PSR was for carrying a

"nickel magazine loaded with three rounds of .9 caliber

ammunition," a charge dropped for lack of probable cause. No one

corrected the court's misreading.

Given a turn to speak again before the court calculated

a guideline sentencing range, the prosecutor claimed that he stood

by the terms of the Agreement, yet he recommended a 37-month

sentence, equaling the high end of the PSR's recommended range

(rather than the 30-month high end as specified in the Agreement's

chart for a criminal history category of I).

During the ensuing discussion, the district court

inexplicably announced that Marchena-Silvestre "has a base offense

level of 19," which was both wrong and contrary to any information

that was before the court. The court also neglected to calculate

any total offense level. The court made clear that it did not

regard the case as a guidelines "heartland" case, and that it felt

a lengthier sentence was needed because of the high incidence of

criminal violence in the Commonwealth for which there was too

little accountability. It recited the "factors to be considered

in imposing a sentence" listed in 18 U.S.C. § 3553(a), and made

clear that it felt that a "variance is in order under [the] 3553(a)

- 6 -
factors." The court then announced its sentence by beginning with

a guideline sentencing range, as follows:

Range is 31 to 41 months. The fine range
is 6,000 to 60 thousand, which means nothing
in [this] case. Plus supervised release of
one to three years. Statutory maximum, ten
years. I think that this case, because of the
kind of gun, ammunition involved, his prior
experiences before the law with guns, requires
a sentence of at least 72 months is the
sentence I'm imposing.

Unfortunately, the announced guideline sentencing range

corresponded to nothing in the PSR nor, for that matter, to any

offense level in the sentencing guidelines. See U.S.S.G. ch. 5

pt. A (Sentencing Table). Had the court adopted the PSR's

recommendation, the range should have been 30 to 37 months. Even

more unfortunately, no one in the courtroom--including even

defense counsel--corrected the court.

Piling error on top of errors, when the district court

submitted its written statement of reasons, it wrote that the total

offense level was 19, that the criminal history category was I,

and that the guideline sentencing range was 33 to 41 months (not

31 to 41 months as it had stated earlier, or 30 to 37 months as

recommended by the PSR). A guideline sentencing range of 33 to

41 months, however, applies to either a total offense level of 20

with a criminal history category of I, or a total offense level of

19 with a criminal history category of II. See U.S.S.G. ch. 5 pt.

A (Sentencing Table). And, of course, that guideline sentencing

- 7 -
range includes a higher floor than the (also incorrect) range

announced at the hearing.1

II. Analysis

On appeal, Marchena-Silvestre says that he is entitled

to resentencing for three reasons: (1) his sentencing hearing was

procedurally flawed, (2) his above-guideline 72-month imprisonment

term is substantively unreasonable, and (3) the government

materially breached the plea agreement. Because Marchena-

Silvestre did not raise these objections in the district court, we

review only for plain error. See United States v. Dávila-

González, 595 F.3d 42, 47 (1st Cir. 2010); see also United States

v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015). The plain

error standard of review places the burden on Marchena-Silvestre

to make four showings in order to justify reversal: "(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

1
Our court has generally given controlling weight to the
district court's oral explanation of a sentence when it differs
from its written explanation. See United States v. Flemmi, 402
F.3d 79, 96 n.26 (1st Cir. 2005); United States v. Muniz, 49 F.3d
36, 42 n.5 (1st Cir. 1995). Here, since both the oral and written
guidelines calculations contain clear and obvious error, we need
not choose which controls. We simply note that the written
explanation only compounds the confusion arising from the
incorrect calculation at the sentencing hearing.

- 8 -
of judicial proceedings." United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001).

A. Failure to Calculate the Guideline Sentencing Range

"'[F]ailing to calculate (or improperly calculating) the

Guidelines range' is a 'significant procedural error.'" United

States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (alteration in

original) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

The court's calculation failures in this case were obvious and

several. It neglected to calculate a total offense level,

misstated the base offense level, and settled on a non-existent

guideline sentencing range extending four months longer than the

upper end of the range recommended by the PSR.

These errors and their obviousness easily satisfy the

first two requirements for a successful plain error challenge.

The closer question is whether Marchena-Silvestre also satisfies

the requirement that he show that the obvious errors "affected

[his] substantial rights." Duarte, 246 F.3d at 60. In the

sentencing context, we construe this requirement as imposing a

"burden of showing a reasonable likelihood 'that, but for the

error, the district court would have imposed a different, more

favorable sentence.'" United States v. Ortiz, 741 F.3d 288, 293-

94 (1st Cir. 2014) (quoting United States v. Turbides-Leonardo,

468 F.3d 34, 39 (1st Cir. 2006)). For the following reasons, we

- 9 -
think that Marchena-Silvestre has shown such a reasonable

likelihood.

We begin with the role of the guidelines calculation

itself. We need tread no new ground in pointing out what precedent

already makes clear about the required nature of that calculation:

Although the Sentencing Guidelines are
now advisory rather than mandatory, district
courts are still required to 'begin all
sentencing proceedings by correctly
calculating the applicable Guidelines range.'
Gall, 552 U.S. at 49. Only after a court has
correctly calculated the applicable
[guideline sentencing range] and evaluated the
factors set out in 18 U.S.C. § 3553(a) can it
properly exercise its discretion to sentence
a defendant within or outside the applicable
Guidelines range. Far from a meaningless
exercise, the requirement that the district
court begin by correctly calculating the
[guideline sentencing range] serves an
important function; it provides 'a framework
or starting point' to guide the exercise of
the court's discretion. Freeman v. United
States, 131 S. Ct. 2685, 2692 (2011).
Starting with such a framework gives the
sentencing judge 'an idea of the sentences
imposed on equivalent offenders elsewhere,'
which in turn 'promote[s] uniformity and
fairness' in sentencing. United States v.
Rodríguez, 630 F.3d 39, 41 (1st Cir. 2010).
Thus, even though sentencing judges are free
to impose non-Guidelines sentences in
appropriate cases, 'district courts must still
give respectful consideration to the now-
advisory Guidelines (and their accompanying
policy statements).' Pepper v. United
States, 131 S. Ct. 1229, 1247 (2011).

United States v. Millán-Isaac, 749 F.3d 57, 66-67 (1st Cir. 2014).

- 10 -
 It is therefore fair to presume in the ordinary case

that there is a reasonable likelihood that any variance added onto

that starting point moves the end point beyond where it would have

been but for the error in the starting point. See Ortiz, 741 F.3d

at 294 ("[T]here is every reason to believe that the court used

the [guideline sentencing range] as an anchoring point from which

to vary."); Rodríguez, 630 F.3d at 41 (explaining that the

sentencing judge must "start out by calculating the proper

Guidelines range--a step so critical that a calculation error will

usually require resentencing").

This is not to say that every error in calculating the

guideline sentencing range calls for reversal under plain error

analysis, or even under harmless error analysis. See United

States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (declining to

resolve a dispute over whether the court erroneously applied an

upward departure under the guidelines because "the district court

stated that it would have reached the same result in a non-

Guideline setting"); United States v. Gerhard, 615 F.3d 7, 35 (1st

Cir. 2010) (similar); cf. Williams v. United States, 503 U.S. 193,

202-03 (1992) (explaining that remand is required under harmless

error analysis "only if the sentence was imposed as a result of an

incorrect application of the Guidelines" (internal quotation marks

omitted)). A sentencing court might, for example, make it clear

that it was aware of a possible flaw in its calculation of a

- 11 -
guideline sentencing range, and explain that its sentence would

nevertheless be the same under an alternative analysis pressed by

the party that ultimately appealed. See, e.g, Tavares, 705 F.3d

at 24-28 (deeming district court's error in not conclusively

choosing between the parties' proposed sentencing ranges harmless

because the court indicated its understanding of the competing

calculations and then stated it would elect a sentence above either

range). Here, though, there is no such explanation by the court.

Instead the government asks us to infer such a view, relying on

the small number of months by which the court erred, the relatively

much greater size of the variance, and the round year nature of

the sentence, all on top of a fair description of the

section 3553(a) factors and a clear intent to issue a variant

sentence.

While the case for such an inference is certainly

plausible, we think it falls short of serving as an adequate

substitute for a "clear statement by the court" that would be

sufficient to "diminish the potential of the [guideline sentencing

range] to influence the sentence actually imposed." Ortiz, 741

F.3d at 294 (citing United States v. McGhee, 651 F.3d 153, 159

(1st Cir. 2011)). Here, the district court attempted to calculate

a guideline sentencing range, described this case by reference to

its differences from the "heartland of cases" within that range,

and, throughout the hearing, recited a litany of justifications

- 12 -
under section 3553(a) for varying upward from that range given the

specific characteristics of the defendant and the crime. There

is nothing wrong with this approach--unless one starts at the wrong

yard marker.

It is, of course, true that the district court declared

before hearing any argument that this was "not a guideline case."

Seizing on this declaration, the government argues that the

incorrect calculation could not have materially affected the

sentence. This argument directly conflicts with the government's

own assertions--with which we agree--that the court "did consider

the Guidelines," and then exercised its discretion to vary upward.

And we have already explained that the district court's repeated

references to the guidelines and the "heartland of cases" within

those guidelines indicate to us that the guidelines served as a

starting point from which the court imposed an upward variance.

It follows that if the district court had correctly calculated a

lower starting point, then there is at least a reasonable

likelihood that it would have landed on a sentence shorter than 72

months (even if just a few months shorter). Nothing in this record

provides any indication clear enough to overbear the probative

force of this logical presumption. See Ortiz, 741 F.3d at 294

(finding that since "the record contain[ed] no suggestion that the

court considered the dimensions of the [guideline sentencing

range] to be irrelevant," an error in calculating defendant's

- 13 -
criminal history score caused plain error); United States v.

Fagans, 406 F.3d 138, 141 (2d Cir. 2005) (explaining that "an

incorrect calculation of the applicable Guidelines range will

taint not only a Guidelines sentence, . . . but also a non-

Guidelines sentence, which may have been explicitly selected with

what was thought to be the applicable Guidelines range as a frame

of reference").

Turning to the last prong of plain error review, we need

not tarry. The district court's repeated failures to calculate

the guideline sentencing range correctly, or to explain its

calculation, all in a fashion that created a higher range than was

recommended by either the PSR or the Agreement, compromised the

fairness and integrity of the proceeding. See Olano, 507 U.S. at

736. We therefore conclude that, under plain error review, we

should exercise our discretion to vacate Marchena-Silvestre's

sentence and afford him a new sentencing hearing. See United

States v. González-Castillo, 562 F.3d 80, 84 (1st Cir. 2009).2

2
Since resentencing will be required, we need not address
Marchena-Silvestre's arguments that the district court's choice of
sentence rested on a clearly erroneous fact, that its explanation
was inadequate, or that the 72-month imprisonment term is
substantively unreasonable. See Millán-Isaac, 749 F.3d at 73 n.9.
We also need not address Marchena-Silvestre's argument that an
abuse of discretion standard of review would apply had we reached
the issue of substantive reasonableness. Cf. United States v.
Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015).

- 14 -
B. Alleged Breach of the Plea Agreement

Our decision to remand for resentencing due to

procedural error does not end our analysis, because the parties

disagree concerning the meaning of the plea agreement that will

still apply on resentencing, and we typically grant specific

performance as a remedy where the government's breach of a plea

agreement leads to reversible error. See United States v. Clark,

55 F.3d 9, 14 (1st Cir. 1995). We therefore address the claimed

breach, reviewing once again for plain error. In so doing, we

construe the terms and conditions in plea agreements in accordance

with traditional principles of contract law, see United States v.

Murphy-Cordero, 715 F.3d 398, 400 (1st Cir. 2013) (interpreting a

waiver of appeal clause), looking outside the document only as

necessary to provide illuminating context or resolve ambiguities

in the writing, see United States v. Alegria, 192 F.3d 179, 183

(1st Cir. 1999).

The parties appear to agree--as do we--that the

existence of a breach turns on the meaning of the phrase

"applicable guidelines range" in Paragraph 9 ("Sentence

Recommendation") of the Agreement. In Marchena-Silvestre's view,

the phrase refers to the range identified by the Agreement itself,

in the chart in Paragraph 7 ("Applicability of United States

Sentencing Guidelines"), thereby requiring the government to

recommend a sentence no greater than 30 months. The words of the

- 15 -
Agreement strongly support this view. One naturally presumes that

the undefined term "applicable guidelines range" would refer

precisely to the guideline settlement ranges set forth in the

immediately prior section of the Agreement called "Applicability

of United States Sentencing Guidelines." If this were not the

intended cross-reference, and one must look outside the Agreement

to figure out the applicable guideline sentencing range, one would

be left to ask: Does it refer to the ranges specified in the PSR,

or to those found by the district court?

The government in its brief answers this question by

insisting that the "applicable guidelines range" means "the

advisory Guidelines' range found applicable at the sentencing

hearing." But the government itself adopted as its recommendation

the range set forth in the PSR before the district court found the

applicable range. Nor did the government revise its

recommendation when it learned of the court's different (and

higher) calculation. Given this sequence of events, the

government's argument is like the thirteenth chime of a clock:

you not only know it's wrong, but it causes you to wonder about

everything you heard before.

Returning to the Agreement itself, we observe that if

the government were correct, the chart in Paragraph 7, which

occupies nearly an entire page of the Agreement, would have no

apparent purpose. Conversely, under Marchena-Silvestre's

- 16 -
reading, it serves the obvious purpose of setting out the

"applicable sentencing guidelines" that limited the range of

sentences the parties could recommend at the hearing. Confronted

with this observation at oral argument, the government offered

that the chart's purpose was "transparency" for the defendant.

But if this construction of the chart as a gratuitous, unnecessary,

and non-binding educational illustration were correct, we think

the chart would only be capable of confusing the defendant and

setting an expectation that could both go unmet by the government's

recommendation later on and provide possible cause for a withdrawal

of the plea.

Marchena-Silvestre's reading also finds strong support

in the repeated reference to a stipulation between the parties in

Paragraphs 8 and 9. After Paragraph 7's chart sets out a guideline

sentencing range for each of the six criminal history categories,

all based on a total offense level of 17, Paragraph 8 states that

"[t]he parties do not stipulate as to any Criminal History Category

for Defendant." It would be entirely unnecessary to make such a

declaration unless the parties did stipulate to the other variable

in the chart's calculations, i.e., the total offense level of 17.

Paragraph 9 then goes on to state that "[t]he parties agree that

any recommendation . . . below or above the stipulated sentence

recommendation constitutes a material breach" of the Agreement.

(Emphasis supplied). From this language one naturally concludes

- 17 -
that, if the district court selected a criminal history category

of I, the parties would be prohibited from arguing for a sentence

outside the range provided in the corresponding section of

Paragraph 7's chart.

We recently put the government on notice that its similar

reading of an analogous plea agreement was "anfractuous."

Almonte-Nuñez, 771 F.3d at 89. In Almonte-Nuñez, we were asked

whether "the defendant [was] foreclosed from appealing [because]

he was 'sentenced in accordance with the terms and conditions set

forth in the Sentence Recommendation provisions' of the

Agreement," pursuant to the agreement's waiver of appeal clause.

Id. at 88. Paragraph 7 ("Sentencing Guidelines Calculations") of

that agreement included a chart that calculated the total offense

level to be 25. Id. at 88. Paragraph 8 ("Sentence

Recommendation") then provided that "the defendant may argue for

the lower end of the applicable guideline range and the government

may argue for the higher end of the guideline range applicable to

defendant's Criminal History Category[.]" 3 We interpreted the

agreement to mean that "for the defendant to have been sentenced

in accordance with the terms of the sentence recommendation

provisions, he would have had to be sentenced within a [guideline

3
Although the chart only set out a sentencing range
corresponding to a criminal history category of I, the Agreement
also included a "no stipulation to criminal history category"
clause virtually identical to Marchena-Silvestre's Paragraph 9.

- 18 -
sentencing range] derived from an offense level of 25." Almonte-

Nuñez, 771 F.3d at 88. Since the district court imposed a sentence

thirteen months higher than the high end of the guideline

sentencing range corresponding to a total offense level of 25 and

the highest possible criminal history category, "[i]t follow[ed],

as night follows day, that the sentences . . . were not in

conformity with the Agreement's sentence recommendation

provisions." Id. at 88.

The government also argued in Almonte-Nuñez, as it does

here, that "the defendant was sentenced in conformance with the

sentence recommendation provisions because those provisions did

not lock in a particular [guideline sentencing range]." Id. at

89. We responded by stating that "the Agreement unambiguously set

the offense level at 25 and barred arguments in favor of further

adjustments." Id. at 89. We similarly rejected the notion that,

since the district court retained ultimate sentencing discretion,

the government could shift its recommendation based on what

occurred at the hearing. Id. at 88-89. And we noted that, "[w]ith

minimal effort, the government could have drafted a waiver clause

having the effect that it unrealistically ascribes to the language

actually used in the Agreement." Id. at 89 n.1 (citing United

States v. Isom, 580 F.3d 43, 51 (1st Cir. 2009) (considering an

appeal waiver provision that applied “if the sentence imposed by

- 19 -
the Court is within the guideline range determined by the Court or

lower.” (emphasis supplied) (internal quotation mark omitted))).

So, the Agreement itself tilts heavily in favor of the

interpretation that Marchena-Silvestre urges we adopt. The

problem is that his own counsel--who presumably well understood

the Agreement--failed to object when the government recommended a

sentence outside the stipulated ranges. Was this an unwitting

forfeiture? Or was it instead extrinsic evidence that the

Agreement should be read as the government applied it in fact

(albeit not as the government claims on appeal)? This would seem

to be an issue on which many of the points for each side are own-

goals.

We are tempted to rely on the standard of review as the

deciding factor, given the Supreme Court's guidance that "the

second prong of plain-error review . . . will often have some

'bite' in plea-agreement cases. Not all breaches will be clear

or obvious. Plea agreements are not always models of

draftsmanship, so the scope of the Government's commitments will

on occasion be open to doubt." Puckett v. United States, 556 U.S.

129, 142 (2009). But such a reliance offers little pragmatic

sense in this case. We are remanding for a new sentencing anyhow,

at which defense counsel this time will presumably insist on a

recommendation consistent with the chart in Paragraph 7 of the

Agreement. Of course, the prosecution has common sense, too. We

- 20 -
cannot imagine that it will continue to use this same form to

document new plea agreements if it wants to argue for a sentence

in a range not reflected in the form. We note, too, that in

another case before us the prosecution appears not to have pressed

for an interpretation of the agreement like that for which it

advocates here. See United States v. Cirilo, No. 14-1793, at 2–3

(1st Cir. Sept. 24, 2015). The difference between the ranges for

which the parties respectively argue in this case is not great, so

prudent counsel may well err on the safe side rather than create

a problematic, preserved issue for appeal. In short, there is a

good chance that the issue will never arise again in this case,

nor in any future case should the government abandon its awkward

plea agreement template. We therefore exercise our discretion not

to finally adjudicate the issue at this stage of this continuing

proceeding.

Finally, to leave room for the government to reassess

its position on remand, we direct that a different judge shall

preside over Marchena-Silvestre's sentencing proceedings. The

possibility that the government breached the plea agreement, see

United States v. Kurkculer, 918 F.2d 295, 300 (1st Cir. 1990)

(stating this court's "repeatedly expressed . . . preference for

. . . resentencing before a different judge" when the government

breaches a plea agreement), and the fact that the judge appeared

to have made up his mind that Marchena-Silvestre deserved a six

- 21 -
year imprisonment term without knowing the correct guideline

sentencing range, see Mawson v. United States, 463 F.2d 29, 31

(1st Cir. 1972) (per curiam) (explaining that "[i]t is difficult

for a judge, having once made up his mind, to resentence a

defendant"), counsel in favor of fresh eyes, "both for the judge's

sake, and the appearance of justice," id. See also United States

v. Hanono-Surujun, 914 F.2d 15, 20 (1st Cir. 1990) (ordering that

resentencing occur before a different judge due to the district

court's failure to comply with a federal rule and its sharp upward

variance from the sentencing guidelines).

III. Conclusion

Marchena-Silvestre's sentence is vacated and this matter

is remanded for resentencing before a different judge.

- 22 -