United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 2, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-40834
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOEL ANGEL GARCIA-COSTILLA,
also known as Joel Angel Garsia-Cortez,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-18-1
_________________________________________________________________
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Joel Angel Garcia-Costilla (“Garcia”) appeals his sentence
pursuant to his guilty plea conviction for the crime of
transporting undocumented aliens within the United States by means
of a motor vehicle for private financial gain. 8 U.S.C. §§
1324(a)(1)(A)(ii) and (a)(1)(B)(i). In the oral plea agreement,
Garcia consented to plead guilty in return for the Government’s
promise to recommend that he receive credit for acceptance of
responsibility at sentencing.
On appeal, Garcia contends that the Government breached the
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
oral plea agreement by arguing against a sentencing reduction for
acceptance of responsibility. He seeks to have his sentence
vacated and to be re-sentenced before a different judge. United
States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002) (stating that
a defendant alleging that the Government breached a plea agreement
may seek either a withdrawal of the guilty plea or specific
performance, requiring the sentence to be vacated and the case
remanded for re-sentencing before a different judge). Garcia
concedes that the plain error standard of review applies because he
failed to object to the Government’s alleged breach at sentencing.
See United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003).
Under the plain error standard of review, for a reviewing
court to exercise its discretion to correct an error, there must be
an error that is clear or obvious and that affects the defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). If such an error exists, the court of appeals may, in its
discretion, correct the error. Id. The court of appeals, however,
should only exercise that discretion if the error “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
We first address the issue of whether the Government breached
the plea agreement. “If a guilty plea is entered as part of a plea
agreement, the government must strictly adhere to the terms and
conditions of its promises.” United States v. Kerdachi, 756 F.2d
2
349, 351-52 (5th Cir. 1985) (quoting Santobello v. New York, 404
U.S. 257, 262 (1971)). Furthermore, if 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.” Santobello, 404 U.S. at 262.
Garcia contends that the Government breached the plea agreement
when it argued against a downward adjustment for acceptance of
responsibility.1 We agree. The Government’s promises in the plea
agreement induced Garcia to plead guilty, and the Government did
not strictly adhere to the terms of the plea agreement. We
therefore hold that the Government breached its plea agreement with
Garcia.
The Government’s breach of the plea agreement constitutes the
requisite clear or obvious error. See United States v. Olano, 507
U.S. 725, 732-34 (1993). In the light of the waiver of
constitutional rights involved in a guilty plea, the Government’s
1
At sentencing, the prosecutor said:
I think for obstruction of justice, I think
lying to the probation officer and basically
lying to the Court properly would warrant not
only denying acceptance, but he did the
obstruction as well because when he was
apprehended he stated to the Border Patrol
agents that he knew that the old man, as he
called him, was in the trunk....
We think that acceptance should be denied and
he should get obstruction as well.
3
breach of the plea agreement affected Garcia’s substantial rights.
Id.; see United States v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir.
1992) (noting that “[d]efendants ... give up constitutional rights
in reliance on promises made by prosecutors, implicating the Due
Process Clause once the court accepts their pleas.”). Finally, we
have no doubt that the Government’s breach of the plea agreement in
this instance also affected the fairness, integrity, or public
reputation of judicial proceedings. Id. at 1328.
Accordingly, we find that the Government breached the terms of
the plea agreement by arguing against an adjustment for acceptance
of responsibility; that this breach constituted plain error; and
the error affected the fairness, integrity, or public reputation of
judicial proceedings. We therefore VACATE Garcia’s sentence and
REMAND the case to the district court for re-sentencing before
another judge. See Gonzalez, 309 F.3d at 886.
VACATED and REMANDED.
4