UNITED STATES COURT OF APPEALS
For the First Circuit
No. 95-1351
UNITED STATES OF AMERICA,
Appellee,
v.
MOISES LUIS VELEZ CARRERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. D. Brock Hornby,* U.S. District Judge]
Before
Selya, Cyr and Lynch,
Circuit Judges.
Jorge E. Rivera-Ortiz on brief for appellant.
Guillermo Gil, United States Attorney, Nelson Perez Sosa,
Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
February 27, 1996
*Of the District of Maine, sitting by designation.
CYR, Circuit Judge. Defendant-appellant Moises Velez
CYR, Circuit Judge
Carrero ("Velez) appeals his sentence on the ground that the
government breached its plea agreement ("the Agreement") by
failing to recommend that there be no adjustment pursuant to
3B1.1 of the United States Sentencing Guidelines. We agree.
"Because plea bargaining requires defendants to waive
fundamental constitutional rights, we hold prosecutors engaging
in plea bargaining to `the most meticulous standards of both
promise and performance.'" United States v. Clark, 55 F.3d 9, 12
(1st Cir. 1995) (citation omitted). In the Agreement, the
government promised "to recommend that no adjustment pursuant to
3B1.1 of the sentencing guidelines be made." At sentencing,
however, the government informed the court that it had "agreed to
make no suggestion to the court as to the role of the defendant
in the offense." What the government bargained to do was to
oppose any 3B1.1 adjustment. What it delivered was its neu-
trality. This is no mere terminological distinction. The quid
pro quo from the defendant's point of view in this case was the
prestige of the government and its potential to influence the
district court. We conclude that the government's conduct
amounted to non-performance of the Agreement.
Santobello v. New York, 404 U.S. 257, 262 (1971),
requires that the breach of a plea agreement be remedied by
either "specific performance of the agreement on the plea, in
which case petitioner should be resentenced by a different judge,
or . . . the opportunity to withdraw the plea of guilty." In
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this case, Velez seeks and we grant the former mode of relief.
See United States v. Canada, 960 F.2d 263, 271 (1st Cir. 1992).
Accordingly, we vacate the sentence and remand with
orders that Velez be resentenced by a different judge. See Loc.
R. 27.1.1
1In light of our decision to vacate the sentence for breach
of the Agreement, we need not address Velez's contention that the
district court violated 18 U.S.C. 3553(c) by failing to recite
its reasons for the sentence it imposed.
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