United States v. Oakes

FILED
United States Court of Appeals
Tenth Circuit

June 5, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 11-6005
MARCUS D. OAKES,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:10-CR-00154-F-3)

Carolyn L. Merritt, Oklahoma City, Oklahoma, for Defendant - Appellant.

Debra W. Paull, Assistant United States Attorney, (Sanford C. Coats, United
States Attorney, Virginia L. Hines, Assistant United States Attorney, and Leslie
M. Maye, Assistant United States Attorney, with her on the brief), Oklahoma
City, Oklahoma, for Plaintiff - Appellee.

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

HARTZ, Circuit Judge.

Upon entering a plea agreement with the government, Defendant Marcus D.

Oakes pleaded guilty in the United States District Court for the Western District

of Oklahoma to one count of distributing cocaine base. At the sentencing
hearing, however, the government breached its promise in the plea agreement not

to oppose Defendant’s request that his sentence be concurrent with a prior federal

sentence, and the district court sentenced him to 37 months’ imprisonment to run

consecutively to the other sentence. When the breach was brought to the court’s

attention a few minutes later, the court struck from the record the improper part of

the government’s argument but resentenced Defendant to the same consecutive

sentence.

On appeal Defendant contends that the breach requires that his sentence be

vacated and resentencing be set before a different judge. We have jurisdiction

under 28 U.S.C. § 1291 and affirm. Defendant does not seek, and we would not

order, that he be allowed to withdraw his plea. Therefore, the sole remedy for the

government’s breach is resentencing. Ordinarily, we would order resentencing

before another judge. But a defendant can choose to be resentenced before the

same judge, that choice can properly be made by defense counsel, and defense

counsel made that choice below. Hence, there is no further remedy available for

Defendant on direct appeal.

I. BACKGROUND

Defendant was indicted on April 20, 2010, on one count of distributing

cocaine base and one count of conspiracy to possess with intent to distribute and

to distribute 50 grams or more of cocaine base. The distribution charge alleged

an offense on November 14, 2008. The alleged conspiracy lasted from November

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2004 to April 2009. Defendant agreed to plead guilty to the distribution count in

return for the government’s promise to dismiss the conspiracy charge and not to

object to his request that his sentence be concurrent with his sentence for a prior

federal conviction on firearms charges.

The probation office’s presentence report revealed Defendant’s disturbing

past. Although only 23 years old, he already qualified for a criminal-history

category of V. His most recent conviction was a guilty plea in federal court to

brandishing a firearm during a crime of violence on January 17, 2009, for which

the sentence was 84 months’ imprisonment. His other adult convictions were for

offenses that included a state firearm-possession offense in January 2007 and a

state drug-trafficking offense in August 2006. He also had several convictions for

minor offenses, and he had pleaded no contest or guilty to juvenile charges on

five different occasions. He had been reported to be a member of the 107 Hoover

Crips gang. The unchallenged calculation under the sentencing guidelines placed

Defendant’s total offense level at 13, resulting in an advisory guideline range of

30 to 37 months’ imprisonment.

Aside from mentioning two letters that Defendant had submitted to the

court, defense counsel’s sole mitigation comments at sentencing related to

Defendant’s request that his sentence be concurrent with his prior federal

sentence. He argued:

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 Judge, the only issue that I would ask the Court to consider in
this case is to run the sentence concurrent with Mr. Oakes’ previous
federal sentence. I’m sure the Court doesn’t remember, but in
perhaps going through the docket sheet in this case, I had previously
filed a motion to dismiss this case based upon what I thought was the
government’s improper conduct in a breach of a plea agreement of
that first federal case of Mr. Oakes. And at that point in time, I
addressed the Court and the Court had—we had a hearing and the
Court overruled my motion.
But I think, Judge, the facts of that motion [were] simply that
Mr. Oakes had pled guilty to a federal offense while this case was
still out there. These acts that he pled guilty to here happened prior
to his federal case that he’s serving time on now. So I think based
upon that type of situation, this Court certainly can and pursuant to
Section 5G1.3 can run a sentence concurrent with his previous
federal sentence.
I would ask that in this case that the Court consider that based
upon all the facts known to this Court and that I think that would be
a fair or at least a partial time of sentence—partially run part of that
time concurrent and I think that the Court will address in those that
on his previous federal sentence he will be serving enough time that
he will meet all the requirements of 3553. He has enough time in
that other case that he will, in fact, have time to be rehabilitated,
have time to get into programs in the federal system, and will have a
fair chance when he gets out to be a productive member of society.

R., Vol. 3 at 34–35 (Tr. of Sentencing Proceedings at 5–6, United States v. Oakes,

No. 10-154 (W.D. Okla. 2011)).

In response the prosecutor, who was not the one who had signed the

original plea agreement, summarized Defendant’s criminal history, asserted that

Defendant could have protected himself from this prosecution by disclosing,

rather than denying, his drug activities when interviewed during the prosecution

of his prior federal offense, and then concluded:

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 When considering what sentence to give this defendant, 30 to
37 being the range of punishment according to the guidelines, I
would submit to the Court that although the defendant says the time
period that he has left in prison is long enough to be rehabilitated, it
is not long enough for that community to recover from the many
years of being ruled by this defendant, his brothers, and the 107
Hoover Crips.
It is for that reason that I respectfully request the high end of
the guidelines and a sentence that runs consecutive to the time that
the defendant is presently serving.

Id. at 39 (emphasis added). The district court imposed a consecutive sentence,

explaining:

Having carefully considered all of the circumstances, I
conclude not only that a sentence at the high end of the advisory
guidelines is appropriate in this case but that the sentence ought to
run consecutive to any other sentence that the defendant is serving. I
do intend to make the term of supervised release in this case
concurrent with the four-year term in Criminal 09-81, but the
sentence of incarceration in this case will be consecutive.
Mr. Oakes, to cut to the chase, you’re a dope dealer. You’re a
gang banger. You have fathered four children out of wedlock. None
of those things cut in your favor. And none of those things make the
Court—give the Court any inclination to show lenience.
Now, I suppose in one sense I have shown lenience. I could
depart upward and I could give you a term of 20 years. I elect to
stay within the guidelines, but the appropriate sentence in this case is
a sentence at the high end of the guidelines.

Id. at 41.

Defense counsel had not noticed the prosecutor’s breach of the plea

agreement and raised no objection during the hearing. But Defendant did notice

and informed his attorney while everyone was still in the courthouse. Defense

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counsel notified the court, which then reconvened the proceedings. After reciting

what had happened, defense counsel said:

So I think that the only—the only thing short of a motion to re-
sentence him based upon a breach of the government plea agreement
would probably be the adequate way to do that, but I think since
we’re all here in court today, the record and with you, I feel
comfortable that you can address that issue and perhaps—I know
you’re not a hundred percent persuaded by the government’s
argument concerning the sentence nor are you mine. But in this case,
Judge, that provision in there was very important at the time we
entered our plea agreement. We knew at that point in time and it was
after our hearing we had concerning my motion to dismiss based
upon the government’s action on the original plea agreement that we
felt it was important and the government didn’t object to my request
at that point in time to run his sentence concurrent.
Now, nothing happened ever since then to change the
government’s position. Everything went forward, no objections. We
didn’t object to any pre-sentence report. Everything went steady
flow as the agreement that Ms. Maye and I and Mr. Oakes made on
that day. And I think that it is implicit in the fact that when I
informed Ms. Maye that we will request to have that sentence run
concurrent, by her not objecting to my request is very important.
I think that without an objection that the Court could consider
our request as reasonable and I would ask this Court to re-sentence
Mr. Oakes to the term of 37 months that you invoked. However, I
would ask that you run that concurrent with case number CR-09-81-L
or whatever provisions you think, Judge, as we sit here today in the
box that I feel like I’ve kind of put us in that is fair to Mr. Oakes
concerning his sentence.

Id. at 45–46. The prosecutor acknowledged the breach and apologized.

The court thanked Defendant and his counsel, stating that “otherwise, there

quite possibly could have been a remand for re-sentencing,” as in a prior case

before the court. Id. at 47. It then explained why it would impose the same

sentence, despite the seriousness of the prosecutor’s breach:

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 The facts in this case are quite simply that I somewhat
reluctantly acquiesced in the government’s request for a guideline
sentence. I seriously considered varying upward from 37 months.
To put it mildly, I was not at all satisfied that a 37-month sentence
was adequate to satisfy the statutory objectives of sentencing, even
as a consecutive sentence. I came very close to departing upward in
this case about 20 minutes ago. And even though I acquiesced in the
government’s request for a guideline sentence, albeit reluctantly, I
can assure all concerned that there is not a chance that I would have
acquiesced in any request, opposed or not, for a concurrent sentence
for the reasons that I mentioned earlier today.
The offense conduct in this case is entirely separate from the
offense conduct in Judge Leonard’s case. And even with—even
without the government’s argument, there is no chance at all that I
would have run this sentence concurrent with the sentence in the
2009 case before Judge Leonard.
Now, let there be no doubt, by making the argument for a
consecutive sentence in this case this morning, the government
breached the plea agreement. The Court of Appeals made it clear in
United States v. Kelvin Scott that this Court must take that matter
seriously, as did the Court of Appeals in that case.
The government’s argument in this case this morning for a
consecutive sentence is stricken. Free of any influence of the
government’s argument for a consecutive sentence, I reaffirm that the
37-month sentence in this case shall run consecutive to the sentence
in the 2009 case.

Id. at 47–49.

II. ANALYSIS

There is no dispute that the prosecutor breached the plea agreement. The

only issue is whether the district court’s actions at the reconvened hearing

provided an adequate remedy. The Supreme Court has identified two possible

remedies for a breach of a plea agreement: (1) “specific performance of the

agreement on the plea,” which would mean resentencing at which the government

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says what it has promised to say, or (2) “the opportunity to withdraw [the

defendant’s] plea of guilty.” Santobello v. New York, 404 U.S. 257, 263 (1971).

“[T]he choice of remedy rests with the court rather than the defendant.” United

States v. VanDam, 493 F.3d 1194, 1206 (10th Cir. 2007).

Although there are occasions when the appropriate remedy for breach of a

plea agreement is to permit the defendant to withdraw the plea, see United States

v. Brye, 146 F.3d 1207, 1213 (10th Cir. 1998) (“When the government’s breach is

particularly egregious or intentional, we will allow defendant to withdraw the

guilty plea.”); United States v. Cooper, 70 F.3d 563, 567 (10th Cir. 1995)

(permitting withdrawal of plea), we ordinarily require only resentencing when the

breach is an improper statement by the prosecutor at sentencing, see, e.g.,

VanDam, 493 F.3d at 1206 (“Resentencing is the typical remedy for the breach of

a plea agreement.”); United States v. Cudjoe, 534 F.3d 1349, 1356 (10th Cir.

2008) (following VanDam).

Because Defendant does not seek to withdraw his plea, and the breach by

the prosecutor was not the sort of error that would mandate withdrawal, the sole

remedy available here was resentencing. See Cudjoe, 534 F.3d at 1356 n.4. And,

in our view, the reconvened hearing in district court amounted to a resentencing.

All the essentials of a resentencing were present. The prosecutor apologized for

her error, the court struck the prosecutor’s prior improper statement, and the court

explained why it would impose the same sentence as before despite the change in

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the government’s position. Defendant complains that the court did not formally

invalidate his prior sentence before imposing the same sentence. But the law is

not so wedded to formalism.

There remains, then, only the question whether the original sentencing

judge could properly conduct the resentencing. In this context, “the general rule

[is] that resentencing should take place in front of a different judge.” VanDam,

493 F.3d at 1206. And Defendant contends on appeal that he must be sentenced

by another judge, one who never heard the prosecutor’s improper argument for

consecutive sentences. The general rule requiring a new judge is not, however, a

rigid one. A defendant may be likely to get a more favorable sentence in

resentencing proceedings before the same judge than before other judges in the

district. Thus, we have honored the request in a defendant’s brief on appeal that

the resentencing be by the original judge. See id.

In the present case it is not disputed that defense counsel requested that the

same judge conduct the resentencing. 1 What Defendant challenges is his

1
Counsel stated:

So I think that the only — the only thing short of a motion to
re-sentence him based upon a breach of the government plea
agreement would probably be the adequate way to do that, but I think
since we’re all here in court today, the record and with you, I feel
comfortable that you can address that issue and perhaps—I know
you’re not a hundred percent persuaded by the government’s
argument concerning the sentence nor are you mine. . . .
I think that without an objection that the Court could consider
(continued...)

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attorney’s authority to make that request on his behalf. He asserts that only he

could make the request and that he did not personally, knowingly, and

intelligently waive his right to resentencing before another judge. We reject the

argument.

Our conclusion follows from our understanding of the relative authority of

defense counsel and Defendant to choose the resentencing judge. Defendant is

correct that some rights can be waived only if the defendant personally consents.

See Taylor v. Illinois, 484 U.S. 400, 417–18 (1988) (noting the existence of

“basic rights that the attorney cannot waive without the fully informed and

publicly acknowledged consent of the client”). “A defendant . . . has the ultimate

authority to determine whether to plead guilty, waive a jury, testify in his or her

own behalf, or take an appeal.” Florida v. Nixon, 543 U.S. 175, 187 (2004)

(internal quotation marks omitted); see Wayne R. LaFave et al., Criminal

Procedure § 11.6(a), at 776 (3rd ed. 2007) (describing the difference between

“strategic” decisions that defense counsel has authority to make and decisions that

1
(...continued)
our request as reasonable and I would ask this Court to re-sentence
Mr. Oakes to the term of 37 months that you invoked. However, I
would ask that you run that concurrent with Case Number CR-09-81-
L or whatever provisions you think, Judge, as we sit here today in the
box that I feel like I’ve kind of put us in that is fair to Mr. Oakes
concerning his sentence.

R., Vol. 3 at 45–46 (Tr. of Sentencing Proceedings at 16–17, United States
v. Oakes, No. 10-154 (W.D. Okla. 2011) (emphasis added)).

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must be made personally by defendant). “These four decisions naturally reside

with the defendant because they implicate the two most basic tenets of our legal

system—the opportunity to have a day in court and the opportunity to have a jury

of peers.” United States v. Washington, 198 F.3d 721, 724 (8th Cir. 1999).

The Supreme Court has not identified any additional decisions as the

exclusive right of the defendant. Although it has not explicitly stated that it will

go no further, we need not determine the precise outer boundaries of counsels’

authority because the Court has made clear that the choice of judge is a tactical

decision left to counsel. In Gonzalez v. United States, 553 U.S. 242, 243 (2008),

the Court considered “whether it suffices for counsel alone to consent to [a

magistrate judge rather than an Article III judge] presiding over voir dire and jury

selection or whether the defendant must give his or her own consent.” It held that

the choice was counsel’s. It first provided general reasons for giving counsel

authority over most decisions:

Giving the attorney control of trial management matters is a
practical necessity. The adversary process could not function
effectively if every tactical decision required client approval. The
presentation of a criminal defense can be a mystifying process even
for well-informed laypersons. This is one of the reasons for the right
to counsel. Numerous choices affecting conduct of the trial,
including the objections to make, the witnesses to call, and the
arguments to advance, depend not only upon what is permissible
under the rules of evidence and procedure but also upon tactical
considerations of the moment and the larger strategic plan for the
trial. These matters can be difficult to explain to a layperson; and to
require in all instances that they be approved by the client could risk
compromising the efficiencies and fairness that the trial process is

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 designed to promote. In exercising professional judgment, moreover,
the attorney draws upon the expertise and experience that members
of the bar should bring to the trial process. In most instances the
attorney will have a better understanding of the procedural choices
than the client; or at least the law should so assume. To hold that
every instance of waiver requires the personal consent of the client
himself or herself would be impractical.

Id. at 249–50 (citations and internal quotation marks omitted). Then turning to

the specific decision at issue in the case before it, the Court explained: “A

magistrate judge’s or a district judge’s particular approach to voir dire both in

substance—the questions asked—and in tone—formal or informal—may be

relevant in light of the attorney’s own approach. The attorney may decide

whether to accept the magistrate judge based in part on these factors.” Id. at 250;

see United States v. Gamba, 541 F.3d 895, 901 (9th Cir. 2008) (lawyer could

consent to magistrate judge’s presiding over closing arguments because tactical

and strategic reasons informed the decision). Gonzalez is consistent with the

widely accepted view that the decision whether to strike a prospective juror

during jury selection is one for defense counsel. See ABA Standards for Criminal

Justice: Defense Function § 4-5.2(b) (recognizing the decision about “what jurors

to accept or strike” as a strategic or tactical one); Gov’t of Virgin Islands v.

Weatherwax, 77 F.3d 1425, 1434 (3d Cir. 1996) (citing ABA standard with

approval); Alvord v. Wainwright, 469 U.S. 956, 960 n.4 (1984) (Marshall, J.,

dissenting from denial of certiorari petition) (citing ABA standard with apparent

approval).

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 The decision whether to proceed with resentencing before a new judge or

the original judge is not a matter of legal expertise. But a lawyer is much better

positioned than the client to make that choice. The lawyer’s experience can

provide insights into which judges are the most severe and which the most lenient

in sentencing for this offense, for this type of defendant, etc. The lawyer can

better judge whether the sentencing judge was uncertain about the original

sentence or whether the judge is likely to reduce the sentence as a sanction

against the prosecution. Consultation with the client may be advisable but the

client is unlikely to provide useful information and, more importantly, counsel

may be unable to convey more than his conclusions about the best way to

proceed.

We therefore hold that Defendant is bound on direct appeal by his counsel’s

decision to proceed with the same judge. We express no view on whether he may

have an ineffective-assistance-of-counsel claim on collateral review.

III. CONCLUSION

We AFFIRM the sentence of the district court. We DENY the

government’s motion to enforce the appeal waiver in the plea agreement.

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11-6005, United States v. Oakes

LUCERO, J., dissenting in part and concurring in part

In the majority’s view, this case is about which judge may conduct a

resentencing under Santobello, and whether defense counsel alone may elect to

forgo judicial reassignment. In my view, the question presented is far more

substantial. This case requires us to decide if counsel can singlehandedly waive a

defendant’s right to obtain the benefit of his constitutional plea bargain—a right

that is inextricably intertwined with the rights waived at the time of entry of a

guilty plea. I consider it beyond dispute that the decision to hold the prosecution

to its promise belongs to the defendant, not to the whim of counsel.

I

Plea bargains cannot be “unilaterally broken with impunity or without

consequence.” United States v. Stemm, 847 F.2d 636, 637 (10th Cir. 1988). Any

promises the government makes in a plea agreement “must be fulfilled to

maintain the ;1223;1223integrity of the plea.” United States v. Werner, 317 F.3d

1168, 1170 (10th Cir. 2003). Accordingly, when the government breaches a plea

agreement, this court remands for one of two possible remedies: specific

performance by the government or withdrawal of the defendant’s guilty plea.

Santobello v. New York, 404 U.S. 257, 263 (1971); Allen v. Hadden, 57 F.3d

1529, 1534 (10th Cir. 1995). The former remedy is sometimes described as
resentencing, and typically occurs before a different judge. 1 See, e.g., Santobello,

404 U.S. at 263.

According to the majority, the reconvened hearing in district court

amounted to specific performance of Oakes’ plea agreement. (Majority Op. at 8.)

But specific performance of a plea deal requires that “the Government . . . fully

comply with the agreement.” Puckett v. United States, 556 U.S. 129, 137 (2009).

Given this requirement and the nature of the government’s breach, the majority’s

position is untenable.

There is no question that the prosecutor’s advocacy breached the

government’s obligation under the plea agreement. In exchange for Oakes’ guilty

plea, the government agreed not to object to Oakes’ request for concurrent

sentencing. At sentencing, however, the prosecutor urged the court to impose a

consecutive sentence, arguing that the time remaining on Oakes’ previous

sentence was “not long enough for th[e] community to recover from the many

years of being ruled by this defendant, his brothers, and the 107 Hoover Crips.”

At issue is how best to interpret what followed. By the time Oakes alerted

his attorney of the breach, the court had already sentenced Oakes and recessed the

sentencing hearing. Upon being informed of the plea agreement issue, the judge

“resumed” the proceeding, and defense counsel stated that he “fe[lt] comfortable”

1
The vast majority of circuits mandate judicial reassignment prior to
resentencing. See United States v. VanDam, 493 F.3d 1194, 1206 n.8 (10th Cir.
2007) (collecting cases). This circuit does not. Id. at 1206.

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with the original sentencing judge addressing the issue “here in court today.” The

court responded that “other than either acknowledging or denying the breach of

the plea agreement,” there was “not much that the government c[ould] say at this

point.” This led the prosecution to apologize and explain that it had not intended

to breach the plea agreement. Following this apology, the court “struck” the

prosecutor’s problematic remarks and “reaffirmed” its decision from minutes

earlier, proclaiming itself “free of any influence” from the prosecutor’s advocacy

in violation of the plea agreement. Under the majority’s view, these events

satisfied the “essentials of a resentencing,” as contemplated by Santobello.

(Majority Op. at 8.)

I fail to see how anything resembling specific performance of the plea

agreement occurred below. Certainly, the judge’s actions could not have

constituted specific performance by the government. As Santobello makes clear,

a judge’s “state[ment] that the prosecutor’s [improper sentencing]

recommendation did not influence him,” is insufficient as a remedy. Santobello,

404 U.S. at 499. Moreover, under Santobello—and, indeed, under basic contract

principles—it is the breaching party who must rectify the breach by specifically

performing an agreement. Id.

Having already done what it agreed not to do, it is unclear how the

prosecution in this case could “fully comply with the agreement” absent a new

proceeding. Puckett, 556 U.S. at 137. Honoring the court’s request not to “get

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into advocacy,” the prosecutor merely apologized after the violation of the plea

agreement came to light. Contrition, however, is not a cognizable remedy under

Santobello. 404 U.S. at 499. As the Court noted in that case, “staff lawyers in a

prosecutor’s office have the burden of ‘letting the left hand know what the right

hand is doing’ or has done. That the breach of agreement was inadvertent does

not lessen its impact.” Id. Indeed, if responsibility for a plea obligation could be

evaded through mere apology, the government would have little incentive for

upholding its promises in any context. See id. at 499 (Douglas, J. concurring).

To specifically perform the plea agreement, the prosecution needed to do more.

The majority misses this point by focusing on whether the judge could

properly conduct Oakes’ resentencing. I do not doubt that, had Oakes so

requested on appeal, we might have remanded this case for the original judge to

preside over a new hearing in which the prosecutor did not contest Oakes’ request

for concurrent sentencing. Such a result would be on all fours with United States

v. VanDam. See 493 F.3d at 1206 (honoring defendant’s request “that the

government be required to fulfill its promise in front of the same sentencing

judge”). In that case, we ordered the original judge to preside over a new hearing

in which the government specifically performed its plea obligation by

recommending a sentence at the low end of the defendant’s Guidelines range. Id.

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at 1206-07. Eschewing judicial reassignment therefore did not deprive VanDam

of his right to a remedy.

Oakes, however, has not received either remedy endorsed by Santobello.

We must decide if this is acceptable given counsel’s request that the district court

“resentenc[e]” Oakes on the spot. In other words, may counsel alone waive a

defendant’s right under Santobello to obtain the benefit of his constitutional

bargain?

II

“What suffices for waiver depends on the right at issue.” New York v.

Hill, 528 U.S. 110, 114 (2000). For waiver of some rights, agreement by counsel

is sufficient as a matter of “practical necessity.” Gonzalez v. United States, 553

U.S. 242, 249 (2008). Other rights, however, “are so important that an attorney

must seek the client’s consent in order to waive the right.” Id. at 250 (citation

omitted). These include a defendant’s right to “‘plead guilty, waive a jury, testify

in his or her own behalf, or take an appeal.’” Id. at 251 (quoting Florida v.

Nixon, 543 U.S. 175, 187 (2004)). In my view, the right to a remedy under

Santobello falls within the latter category, and cannot be waived by counsel

without consent.

Ours is increasingly “a system of pleas, not a system of trials.” Missouri v.

Frye, 132 S. Ct. 1399, 1407 (2012). Ninety-seven percent of federal convictions

and ninety-four percent of state convictions are the result of guilty pleas. Id. If

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defendants lose faith that the government will uphold its promises, this entire

apparatus could come to a crashing halt.

Thus, as courts have frequently emphasized, our criminal justice system

requires that defendants who plead guilty receive the benefit of their plea

bargains. See e.g., Santobello, 404 U.S. at 261-63; United States v. Villa-

Vazquez, 536 F.3d 1189, 1196 (10th Cir. 2008); Van Dam, 493 F.3d at 1202-04;

Werner, 317 F.3d at 1169-70; Allen, 57 F.3d at 1534; Stemm, 847 F.2d at 637.

We have explained that a “prosecutor’s material breach of a plea agreement

undermines the efficacy, and probity, of the criminal justice ;6070;6070system. It

also erodes public confidence in the legitimacy of this ;6082;6082system.”

VanDam, 493 F.3d at 1203 -1204. Ensuring that a defendant receives specific

performance or rescission following a breach is therefore essential to

“preserv[ing] the integrity of the criminal justice process, and the public’s faith in

its integrity.” Id. at 1204.

Guaranteeing the integrity of plea bargains is also of great personal concern

to individual defendants. When a defendant enters into a plea agreement, he

waives several fundamental constitutional entitlements. Santobello, 404 U.S. at

500 (Douglas, J., concurring). These include the right to a jury trial, the right to

confront one’s accuser, the right to present witnesses in one’s defense, and the

right to put the government to its burden of proving guilt beyond a reasonable

doubt. Id. A defendant waives these rights solely because he expects that the

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government will fulfill its promises in return. Allowing counsel to sacrifice such

valuable consideration to a defaulted bargain is fundamentally unfair.

The First Circuit adopted a similar rationale in United States v. Kurkculer,

918 F.2d 295 (1st Cir. 1990). In Kurkculer, as in the case at bar, the prosecution

violated a plea agreement at sentencing. Id. at 297. On appeal, the government

maintained that the defendant had waived his right to invoke Santobello, but the

court rejected this argument because it found that Kurkculer did not “knowingly

and voluntarily waive the right to a remedy.” Id. at 300. Waiving a Santobello

remedy, the court reasoned, requires “reaffirm[ing] the defendant’s waiver of the

rights originally waived by pleading guilty.” Id. I agree. Given the gravity of a

plea breach, I would hold that a defendant must knowingly and voluntarily

consent before remedies for breach are waived. 2

III

A defendant cannot be required to accept a defaulted plea bargain without

his knowing consent. Because it is not possible to infer from the appellate record

whether Oakes consented to waive his rights to either specific performance or

rescission of his plea deal, I would remand to allow the district court to make this

2
In addition, the manner in which a defendant proceeds in the face of a
defaulted plea bargain will often turn on the role the particular breached promise
played in the defendant’s decision to plead guilty. Thus, unlike a purely tactical
choice, such as between a magistrate or Article III judge, (see Majority Op. at
11), the defendant, rather than his attorney, will often have superior insight into
the decision.

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determination. I join in the denial of the government’s motion to enforce the

appeal waiver in the plea agreement.

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