dissenting
I respectfully dissent.
In my opinion, the prosecutor’s statement concerning the lack of precedential support for a downward departure based on age. and health was improper legal argument. Similarly, the prosecutor’s comment that many other criminal defendants have age- and health-related problems suggested that Peterson’s problems were not of the unusual or atypical nature required for the court to conclude that a downward departure was appropriate in Peterson’s case, and is therefore also legal argument in opposition to the motion. See United States v. Jones, 158 F.3d 492, 496-97 (10th Cir.1998).
*1173Further, I believe the prosecutor’s comments that “there may be forgiveness; however, there are consequences to one’s acts” also constitutes opposition to the motion for downward departure. The impact of that statement is that the defendant should be required to bear the full consequence of his behavior without the mitigation of a downward departure.
I cannot conclude that Peterson’s request for a downward departure based on age and health are so devoid of merit as to be characterized as made in bad faith. Read in total, the prosecutor’s comments conveyed to the judge a subtle, but clear, opposition to downward departure. In my opinion, this is a violation of the government’s plea agreement.
Thus, I would REVERSE the sentence of the district court and REMAND for Peterson to be resentenced before a different judge. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).