dissenting.
I would affirm the judgment of the district court. It applied the correct legal standard in reaching its decision and correctly held that the state court decisions were an unreasonable application of the Supreme Court’s precedent in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
It is clear to me that the prosecutor breached the plea agreement by commenting on petitioner’s request for a probationary sentence after promising to take no position on the matter. I agree with the district court that while the prosecutor was free to comment on the presentence report with respect to the petitioner’s status as a persistent offender and on the details of the charged crime, he went beyond outlining those details and implicitly opposed petitioner’s request for a sentence of probation pursuant to Mo.Rev.Stat. § 559.15. As the district court stated: “The prosecutor himself realized he was breaking his promise by beginning with, ‘Your Honor, I’ve agreed to stand silent today, but ....’” The prosecutor’s statements were not a clarification of the facts; they were simply his impression of the petitioner. This is obvious from the words of the prosecutor. See e.g., ante at 585 (“I don’t think it can be said tht he’s matured a lot ....”) It is also obvious that the theme of the prosecutor’s soliloquy was that the petitioner was not a good person, unfit for probation. This is clearly argument, rather than a clarification of confused facts. In a factually similar situation, the Ninth Circuit said:
The prosecutor’s comments ... did not provide the district judge with any information which he did not already have before him. What the prosecutor did was to make certain that there was “no misconstruction of the history” ([defense] counsel had construed the prior offenses as “petty in nature”), by pointing out the “serious nature” of the prior offenses.
Because the prosecutor’s comments did not provide the district judge with any new information or correct any factual inaccuracies, the comments could have been made for only one purpose: to influence the district court to impose a harsher sentence than that suggested by appellant’s counsel.
United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.2000). Likewise here, the prosecutor’s “clarification” of facts was essentially argument to the sentencing court that Colvin was not amenable to probation. *592While the district court may well have reached this conclusion on its own, the prosecutor had agreed to remain silent on the issue; failing to do so violated the plea agreement.
There is an additional reason for awarding petitioner relief. The state motion court based its denial of relief on its finding that Colvin was never promised by his counsel or the prosecutor that he would receive probation if he pled guilty to the three counts outlined in the majority’s opinion. Thus, he was not prejudiced when the district court refused to give him an authorized probationary sentence. This reasoning misses the point. The question is whether the prosecutor violated the basis on which the plea was entered when he, in effect, said that Colvin was not entitled to probation. The fact that the state motion court did not fully consider Colvin’s argument is an additional reason for remanding the matter for resentencing.
We do not know what the sentencing judge would have done had the prosecutor honored the plea agreement and remained silent. The sentencing laws applicable to Colvin clearly provided for the possibility of a probationary sentence. The district court recognized this fact when it ordered that the case be remanded to state court for sentencing by another judge to impose sentence following a hearing consistent with the plea agreement. I would uphold that decision.