United States v. VanDam

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 10, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v.
No. 06-4104
LEONARD DALE VANDAM , also
know n as Sebastian Lopez, also known
as Sebastian Lopez M endoza,

Defendant-Appellant.

Appeal from the U nited States District Court
for the District of Utah
(No. 1:01-CR-101-DB)

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public Defender, with him on the briefs), Denver, Colorado, for the
Defendant – Appellant.

Diana Hagen, Office of the United States Attorney, District of Utah (Brett L.
Tolman, United States Attorney, Stephen J. Sorenson, Assistant United States
Attorney, with her on the brief), Salt Lake City, Utah, for the Plaintiff – Appellee.

Before L UC ER O, M cKA Y, and HO LM ES, Circuit Judges.

HO LM ES, Circuit Judge.

Defendant Leonard Dale V anDam argues that the government breached its
duty under his plea agreement by failing to recommend a term of imprisonment at

the bottom of the applicable range under the United States Sentencing Guidelines

(the “Guidelines”). As a remedy, M r. VanDam seeks specific performance before

the same judge.

W e agree that the government breached the plea agreement. W e also agree

on these facts that M r. V anDam should receive his requested remedy.

Accordingly, exercising our jurisdiction under 18 U.S.C. § 3742(a)(1) and 28

U.S.C. § 1291, we VAC ATE M r. VanDam's sentence and REM AND to the same

sentencing judge for resentencing.

I. BACKGROUND

On December 19, 2001, M r. VanDam w as charged with one count of

possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), and with one count of possession of a firearm as a felon, in violation

of 18 U.S.C. § 922(g)(2).

The government filed a superseding indictment on April 24, 2002. The

superseding indictment added a second drug trafficking charge. The two drug

trafficking charges stemmed, respectively, from incidents on October 17, 2001

and February 25, 2002. The state police arrested M r. V anDam on each occasion.

The firearm charge was linked only to the October 17, 2001 incident.

2
 A. Plea Agreement

After M r. VanDam unsuccessfully moved to suppress the evidence seized

in connection with the October 17, 2001 incident, he entered into a conditional

plea agreement with the government. M r. VanDam pleaded guilty to the October

17, 2001 drug trafficking charge and to the felon-in-possession charge, although

he reserved his right to appeal the suppression ruling. In exchange, the

government dropped the February 25, 2002 drug-trafficking charge and, inter

alia, agreed to “recommend sentencing at the low end of the guideline range

found applicable.” R., Supp. Vol. II, Doc. No. 48, ¶ 11(C), at 4. The district

court accepted M r. V anDam’s guilty plea on December 13, 2002.

B. First Sentencing

The Presentence Investigation Report (“PSR”) recommended a Guidelines

range of 188 to 235 months of imprisonment, based upon a total offense level of

33. In calculating the base offense level pursuant to Guidelines § 2D1.1, the PSR

converted the cash found in M r. VanDam's possession on October 17, 2001 into a

quantity of methamphetamine and then into a marijuana equivalent.

At sentencing, the district court chose not to convert the cash attributed to

M r. VanD am into a drug equivalent for purposes of calculating his base offense

level. W ithout the conversion, the district court found M r. VanDam's total

offense level to be 31, rather than 33. This yielded a Guidelines range of 151 to

188 months. The district court then chose to sentence M r. VanDam in the middle

3
of that range, to a 168-month period of incarceration.

C. First Appeal

M r. VanDam appealed the denial of his motion to suppress. On appeal, the

government conceded that the district court should have suppressed a firearm

found in M r. VanDam's vehicle. This Court agreed that the firearm was illegally

obtained. 1 See United States v. VanDam, No. 03-4137, slip op. at 1 (10th Cir.

Sept. 15, 2005). W e therefore vacated M r. VanDam's original sentence and

remanded for additional proceedings. Id. at 2.

D. Second Sentencing

On remand, the parties chose to honor the original plea agreement, without

the felon-in-possession charge.

Prior to resentencing, the government filed a sentencing memorandum. The

government argued that the offense level – and, therefore, the Guidelines range –

should be higher than that found applicable during the original sentencing. The

government contended that possession of the firearm still triggered an

enhancement under Guidelines § 2D1.1(b)(1), since the exclusionary rule is

generally inapplicable to sentencing proceedings. The government also argued

that the district court erred during the first sentencing proceeding in not

1
W e rejected the district court's theory that the search of M r.
VanDam's car was valid because the parking lot in which his car was located
functioned as curtilage to the motel room, the search of which was supported by
probable cause.

4
converting the cash in M r. VanDam's possession at the time of his October 17,

2001 arrest into a drug quantity. Asking the district court to consider the firearm

and the cash, the government pushed for a Guidelines range of 188 to 235 months.

The government advocated for the “low end of that guideline range.” R., Supp.

Vol. II, D oc. 84, at 4 (emphasis added).

The government's sentencing memorandum did recognize, however, that the

district court previously rejected this offense-level calculation. Faced with this

reality, but stressing that the applicable Guidelines range should be 188 to 235

months, the government conceded that the district court’s original sentence of 168

months was still a “reasonable sentence.” Id.

A sentencing hearing was conducted on April 25, 2006. At the outset, the

district court summarized the government's position as to the appropriate

sentence:

The government claims that . . . all of this effort by M r. VanDam
and all that reading and you successfully getting this remanded does
not make any difference. They still want the 168 months. In fact,
they think it really should be 188 months, but they are willing to live
with 168.

Right?

R., Vol. II, Tr. at 5. The government responded, “That is exactly our position,

yes.” Id. (emphasis added).

Later, the government elaborated upon this position:

If the Court had counted that money, we would end up

5
 with a final offense level of 33 and a criminal history of four
for a range of 188 to 235 months. Discounting the money, his
final offense level is down to a level 31 with a range of 151 to
188. The 168 is within that guideline range. The government
initially agreed to recommend the low end of the guideline
range as a part of the sentencing considerations in this case.
However, the government is of the opinion that the appropriate
guideline range would be that 188 to 235, and the low end of
that would be 188.

Id. at 7-8 (emphasis added). At the end of its colloquy, the government presented

its “bottom line”: it was “still recommending the 168 month sentence be imposed

at this resentence.” Id. at 9.

Following the government's ultimate recommendation of 168 months, M r.

VanDam personally addressed the district court. He described his personal

progress since his first sentencing. In particular, M r. VanDam noted that, due to

the absence of any disciplinary problems, he was transferred from a medium-

security facility to a low-security facility; that he was promoted in his prison job;

and that he was taking yoga and Spanish classes. M r. VanDam also took

responsibility and expressed contrition for his past offenses.

After these statements, the district court announced M r. VanDam's new

sentence. The district court rejected the government's Guidelines calculation,

concluding that the original offense level of 31 was still “appropriate.” Id. at 14.

This yielded a range of 151 to 188 months. Unlike the first sentencing, however,

the district court sentenced M r. VanDam at the low end of this range, to 151

months. It also credited M r. VanDam for the 15 months that he had spent in

6
pretrial detention on federal and state charges, based upon its belief that the U.S.

Bureau of Prisons would refuse to do so.

The district court rested its more lenient sentence – its movement from the

middle of the G uidelines range to the low end of the G uidelines range – upon M r.

VanDam's strides towards rehabilitation. It explained that “M r. VanDam is

doing remarkably well in prison and following the rules and actually finding what

he claims to be some new balance in life and hopefully a disassociation from the

use of methamphetamine and the practices that got him in trouble in the first

place.” Id. at 14. The district court did not mention the government's actual

recommendation of 168 months in this analysis. Nor did the district court refer to

the government's obligation under the plea agreement to recommend the low end

of the applicable Guidelines range.

After announcing M r. VanDam's prison sentence, the district court

considered his request to change one of the conditions of his supervised release,

which w ould require him to maintain full-time employment. The district court

conversed with M r. V anDam about this request, and ultimately granted it.

During this conversation, the government agreed that it had no objection and

otherw ise remained silent.

E. Instant Appeal

On M ay 1, 2006, M r. VanDam filed a timely notice of appeal. M r.

VanDam argues that: (1) the government breached the plea agreement by not

7
recommending a sentence at the low end of the Guidelines range and that, as a

remedy, he is entitled to specific performance of the plea agreement before the

same sentencing judge; and (2) the district court erred by not applying the

exclusionary rule at sentencing.

II. D ISC USSIO N

The viable part of M r. VanDam's appeal relates to the alleged breach of the

plea agreement. 2 R esolving this appeal requires a three-step analysis: (1) we

must determine whether the government breached the plea agreement; (2) if so,

we must determine whether the breach can be deemed harmless; and (3) if the

breach cannot be deemed harmless, we must determine what remedy M r. VanDam

should receive.

W e first hold that the government breached the plea agreement by not

recommending a sentence at the low end of the Guidelines range that the district

court found to be applicable – that is, a range of 151 to 181 months. W e then

2
M r. VanDam raises the exclusionary-rule argument “only to preserve
it for consideration by the full court and/or by the Supreme Court.” Aplt Br. at
27. M r. VanDam concedes that this Panel must adhere to United States v. Ryan,
236 F.3d 1268 (10th Cir. 2001), which held that evidence obtained through an
illegal search and seizure may be introduced at sentencing, unless the evidence
was illegally gathered with the intent to secure an increased sentence. Id. at
1272. M r. VanDam acknowledges the inapplicability of the Ryan exception.
Accordingly, because this Panel may not overrule a decision of another Panel
absent en banc reconsideration or a supervening Supreme Court decision, see
United States v. M eyers, 200 F.3d 715, 720 (10th Cir. 2000), we apply Ryan and
summarily reject M r. VanDam's contention that the district court erred by not
applying the exclusionary rule at sentencing.

8
hold that, pursuant to Santobello v. New York, 404 U.S. 257 (1971), and its

progeny, it is inappropriate to apply a harmless-error analysis. Finally, we hold

that M r. VanDam should receive the remedy of specific performance before the

same sentencing judge.

A. Breach

This Court reviews de novo the question of whether the government has

breached a plea agreement, even when the defendant fails to preserve this

objection below. See United States v. Werner, 317 F.3d 1168, 1169 (10th Cir.

2003).

General principles of contract law define the content and scope of the

government's obligations under a plea agreement. See, e.g., United States v.

Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003). W e thus look to the express

language in the agreement to identify both the nature of the government's promise

and the defendant's reasonable understanding of this promise at the time of the

entry of the guilty plea. See, e.g., United States v. Rockwell Int'l Corp., 124 F.3d

1194, 1199 (10th Cir. 1997). W e construe all ambiguities against the government,

to the extent it is the drafting party. See, e.g., United States v. Brye, 146 F.3d

1207, 1210 (10th Cir. 1998). W e evaluate the record as a whole to ascertain

whether the government complied with its promise. See United States v.

Rodriguez-D elm a, 456 F.3d 1246, 1251 (10th Cir. 2006) (concluding after

“consideration of the entire record” that government did not breach plea

9
agreement), cert. denied, 127 S. Ct. 1338 (2007).

Under the unambiguous language of the plea agreement in this case, the

government was obligated to recommend a sentence “at the low end of the

guideline range found applicable.” R., Supp. Vol. II, Doc. 48, ¶ 11(C), at 4. This

language did not preclude the government from advocating for a particular

Guidelines range. However, it did require the government to recommend a

sentence at the bottom of the range that the district court ultimately “found

applicable,” even if that range differed from the government's proposed range.

Both the government and M r. VanDam agree with this interpretation of the plea

agreement. See Aplee. Br. at 13; A plt. Br. at 18.

Reading the record as a whole, the government breached the plea

agreement. At no point in its written submissions or oral statements did the

government recommend a sentence at the bottom of the ultimately-applicable

Guidelines range, as defined by the district court – i.e., 151 to 188 months.

Instead, the government recommended a sentence at the low end of the range it

deemed applicable. This combination of inaction and action, respectively,

undermined the government's promise to M r. V anDam. See United States v.

Cachucha, 484 F.3d 1266, 1270 (10th Cir. 2007) (holding that prosecutor

breached plea-agreement promise “not to seek a higher offense level or an upward

variance”; his statements disapproving applicable Guidelines range “undermine[d]

the prosecutor’s promises” to defendant).

10
 W e start with the sentencing memorandum. In this document, the

government stated that M r. VanDam's Guidelines range should be 188 to 235

months. It then recommended a sentence at “the low end of that guideline range.”

R., Supp. Vol. II, Doc. 84, at 4 (emphasis added). The government's sentencing

memorandum ultimately conceded the reasonableness of a specific sentence that

was below the range that the government believed to be applicable – that is, 168

months. Nonetheless, this fixed 168-month recommendation was in the middle,

not the low end, of the range that the district court found to be applicable (i.e.,

151 to 188 months).

At the sentencing hearing, the government again confirmed that M r.

VanDam's sentence “should be 188 months,” although it was “willing to live with

168 [months].” R., Vol. II, Tr. at 5. W hen it did mention its sentence-

recommendation obligation under the plea agreement, the government did so in a

manner that suggested the obligation was no longer in effect:

Discounting the money, his final offense level is down to a
level 31, with a range of 151 to 188. The 168 is within that
guideline range. The government initially agreed to
recommend the low end of the guideline range as a part of the
sentencing considerations in this case. However, the
government is of the opinion that the appropriate guideline
range would be that 188 to 235, and the low end of that would
be 188.

Id. at 7 (emphasis added). In fact, these comments suggested that the government

felt obligated only to recommend a sentence at the low end of its preferred

11
Guidelines range. The government further projected this belief in its last remarks

to the district court on the sentencing issue. The government expressed a

willingness to accept the district court’s original sentence, which was below the

Guidelines range favored by the government but 17 months above the low end of

the Guidelines range the district court ultimately “found applicable”: “I guess the

bottom line is we are still recommending the 168 month sentence be imposed at

this resentence.” Id. at 9 (emphasis added).

Put simply, neither the 188-month recommendation nor the 168-month

recommendation was at the bottom of the range “found applicable” by the district

court. Yet, they were the only recommendations the government offered. Both

directly contravened the government’s obligations under the plea agreement.

The government correctly points out that the PSR informed the district

court of the government's obligation to “recommend the defendant be sentenced at

the low-end of the applicable guideline range.” R., Vol. III, ¶ 6 at 3. The

government argues that, pursuant to United States v. Smith, 140 F.3d 1325, 1327

(10th Cir. 1998), the PSR fulfilled its duty under the plea agreement. W e

disagree.

In Smith, we held that “the term 'recommendation' in a plea agreement does

not require the prosecutor to allocute in favor of specific adjustments in the

defendant's sentence if the recommendations are contained in the PSR and the

prosecutor does not allocute against an agreed-upon adjustment.” 140 F.3d at

12
1327. Applying this interpretation, we concluded that the government did not

breach its obligation to recommend various sentencing adjustments even though it

never made an argument for any of the adjustments at the sentencing proceeding.

Id. at 1327. W e observed that the sentencing court was aware of the government's

promises, which were memorialized in the PSR; they “were noted by the judge at

the sentencing hearing.” Id. And, importantly, “[n]o act of the government

before or at sentencing could be read as contrary to the position they agreed to

support.” Id. at 1327-28.

However, the circumstances identified in Smith that would permit the

recitals of a PSR, alone, to satisfy a governmental promise to make a particular

sentence recommendation are not present in this case. Unlike what transpired in

Smith, the government in this case did not just remain silent at the sentencing

hearing. Instead, it advocated for a sentence contrary to the agreed-upon

recommendation. Furthermore, unlike Smith, the sentencing court in this case

never acknowledged at the hearing the PSR's references to the government's plea-

agreement recommendations. Accordingly, the PSR’s mere recital of the

government's plea-agreement obligations in this case in no way relieved the

government of the responsibility for honoring those obligations through its

actions.

The government notes, however, that the district court acknowledged the

government's obligations under the plea agreement at the original change-of-plea

13
hearing, in December 2002. However, the second sentencing took place more

than three years after the original change-of-plea hearing. It therefore is unlikely,

to say the least, that in resentencing M r. VanDam the district court recalled its

prior statement concerning the government’s plea-agreement obligations. See

United States v. Riggs, 287 F.3d 221, 223-25 (1st Cir. 2002) (holding that

government breached plea agreement by failing to recommend sentence based

upon specific drug quantity, even though sentencing judge acknowledged

sentencing recommendation that government was obligated to make at Rule 11

hearing six months earlier). 3

Finally, the government argues that, even if it needed to make additional

comm ents recommending the low end of the ultimately-applicable Guidelines

range, it had no opportunity to do so because the district court identified this

range and then swiftly pronounced M r. VanDam's sentence. W e reject this type

of rationalization. The government had many opportunities to comply with the

plea agreement. It could have made the district court aware of its obligation prior

to the sentencing hearing, perhaps through the government's sentencing

memorandum. During its sentencing-hearing colloquy, the government

3
W e take no position on whether close temporal proximity between a
Rule 11 colloquy, during which a district court recites the government's sentence-
recommendation obligations, and a sentencing hearing is enough, without more,
to satisfy the government's duty under a plea agreement to recommend a
particular sentence.

14
unambiguously could have informed the district court that, although it wanted a

certain range, it nonetheless was recommending the low end of whatever range

the district court found to be appropriate. Indeed, the government also could have

honored its agreement by respectfully getting the district court’s attention and

interjecting the requisite recommendation immediately after the district court

identified the applicable Guidelines range but prior to the oral pronouncement of

the sentence. None of these steps was taken. 4

4
The lack-of-time argument is belied further by the fact that the
district court employed the 151- to 188-month Guidelines range at the original
sentencing hearing. Thus, as it admitted during oral argument, the government
was on notice throughout the resentencing process that the district court could use
this range at the resentencing hearing. Accordingly, the government was w ell
situated at the hearing (as w ell as before) to craft arguments that took into
account the possibility that the court would find to be applicable a lower-than-
preferred Guidelines range.

To be sure, the government insisted during oral argument that M r.
VanDam’s failure to object to its arguments for a higher sentencing range in
connection with the resentencing effectively made the 188- to 235-month range
the operative baseline for the resentencing – a baseline from which the district
court deviated only at the very end of the hearing. W e are unpersuaded.
Irrespective of whether M r. VanDam objected to its sentencing arguments, the
government had a plea-agreement obligation to make clear to the district court
that it recommended the low end of w hatever G uidelines range the district court
found to be applicable; the government failed to do so. Furthermore, given that
the district court had specifically rejected the 188- to 235-month range at the
original sentencing, the government would have been operating in a truly
Panglossian fashion if it chose to believe that its arguments (unopposed or
otherwise) had the power to reimpose this higher range as the resentencing status
quo. Indeed, the district court apparently held the obverse view regarding the
operative sentencing baseline. In other words, the record strongly suggests that
the district court viewed the 151- to 188-month range to be the status quo, from
(continued...)

15
 Based upon the record as whole, the government never recommended a

sentence at the low end of the applicable Guidelines range, as found by the

district court. Rather, the government consistently recommended sentences either

below or at the low end of the range it thought should apply. The government

therefore breached the plea agreement.

B. H arm lessness

The government argues that even if a breach took place, the breach itself

was harmless because the district court imposed a sentence in conformity with

what the government should have recommended – a sentence at the low end of the

Guidelines range. To support this position, the government claims that the

Supreme Court's holding in Santobello, which did not apply a harmless error

analysis to a prosecutorial breach of a plea agreement, is inapposite because M r.

VanDam “seeks only re-sentencing and expressly disavows the position that his

plea should be vacated.” Aplee. Br. at 20.

W e believe that Santobello is not only relevant, but also dispositive: it

precludes harmless-error review. In Santobello, the Supreme Court answered tw o

necessarily sequential questions: (1) the antecedent question of whether relief is

4
(...continued)
which it declined to deviate to reach the higher range that the government urged
upon it. The district court stated: “So I’m not going to change the offense level,
with all due respect to you [prosecutor]. . . .” R., Vol. II, Tr. at 14 (emphasis
added). In sum, the government’s lack-of-time argument is without merit.

16
required for a breach of a plea agreement; and (2) the subsequent question of what

remedy to provide. See 404 U.S. at 262-63.

The Supreme Court answered the first question in the affirmative, at least

with respect to a material breach. 5 See id. at 262 (noting that breach was not

“immaterial”). It identified two principles that require automatic remand,

regardless of whether the government's material breach of the plea agreement

influenced the sentencing judge: (1) promoting the “interests of justice”; and (2)

recognizing “the duties of the prosecution in relation to [guilty-plea] promises.”

5
Santobello provides no express guidance as to the effect of non-
material breaches. In one instance, after “find[ing] [that] the breach by the
Government was not material,” we held that no relief was warranted. United
States v. Easterling, 921 F.2d 1073, 1080 (10th Cir. 1990). W e did not apply
harmless-error review in Easterling. Instead, we scrutinized the unique factual
record, which evidenced, inter alia, the district court’s approval of the
defendant’s request to enforce a plea agreement that spoke to his cooperation with
law enforcement. Id. W e then determined that “any breach by the Government”
in failing to submit a timely cooperation memorandum to the district court that
would have only further elaborated upon the defendant’s law enforcement
cooperation was “immaterial.” Id.

In a similar vein, some courts have addressed such situations through
what might be called the “technical violation” doctrine. This doctrine holds that
“technical” or “minor” violations of plea agreements (i.e., de m inimis breaches)
do not require a remedy, absent evidence of actual prejudice at a sentencing
hearing. See United States v. Amico, 416 F.3d 163, 167-68 (2d Cir. 2005); United
States v. Clark, 55 F.3d 9, 14 n.3 (1st Cir. 1995). The rationale behind this
doctrine is that only material breaches of a plea agreement, as in this case, cause a
defendant's reasonable contractual expectations to go unfulfilled. See United
States v. Vaval, 404 F.3d 144, 155 (2d Cir. 2005). At least in express terms, w e
have not previously endorsed the technical violation doctrine. Under the facts of
this case, which involves a material plea-agreement breach, we have no occasion
to do so.

17
Id. In essence, the Supreme Court concluded that due to the gravity of these

interests, which transcend a particular sentencing outcome in a particular case, the

judiciary must provide some “relief.” Id. at 263. This determination in no way

hinged upon the type of remedy the defendant requested (e.g., specific

performance at a resentencing or plea-agreement vacatur).

After announcing that “relief” was required, the Supreme Court then

identified the available remedies – the lesser remedy of specific performance or

the greater remedy of withdrawal of the guilty plea. Id. The Supreme Court

gave the sentencing court the discretion to choose between these two options,

based upon “the circumstances of this case.” Id. at 263. M oreover, in stating that

resentencing, if chosen, “should” take place before a different judge, the Supreme

Court recognized the need for the appearance of institutional fairness. Id.

A harmless-error analysis violates the principles behind Santobello's

automatic-remand rule. Due to the institutional nature of these principles, the

government's material breach of a plea agreement cannot be rendered harmless

simply because a defendant seeks the remedy of resentencing, rather than vacatur

of the plea agreement. See United States v. Vaval, 404 F.3d 144, 155 (2d Cir.

2005) (“[I]n order to preserve the integrity of plea bargaining procedures and

public confidence in the criminal justice system, a defendant is generally entitled

to the enforcement of a plea agreement without showing a tangible harm resulting

from a breach.”).

18
 For instance, the “interests of justice” rationale implicates, at a minimum,

principles of fundamental fairness. Clearly, it is inequitable to permit a

prosecutor to renege on the consideration that induced a defendant to waive

important constitutional guarantees. This inequity – not getting the benefit of the

constitutional bargain (i.e., government action/inaction and the potential to

influence the sentencing judge) – invalidates the agreement, including the

knowing and voluntary waiver. See Mabry v. Johnson, 467 U.S. 504, 509 (1984)

(“It follows that when the prosecution breaches its promise with respect to an

executed plea agreement, the defendant pleads guilty on a false premise, and

hence his conviction cannot stand.”).

A defendant therefore is entitled to a remedy that restores the

meaningfulness of his bargain, see Santobello, 404 U.S. at 262 (noting that

agreement “must be fulfilled” to maintain integrity of plea), even if an appellate

court convinces itself beyond a reasonable doubt that the trial judge w ould impose

the same sentence on remand. See Dunn v. Colleran, 247 F.3d 450, 461-62 (3d

Cir. 2001) (“Especially when the prosecutor's promise is not binding on the court,

the defendant does not bargain for a specific sentence but for a lock on what the

prosecutor can do and say at sentencing. That the sentencing court does not

follow the prosecutor's lead is irrelevant.”).

Santobello's second justification for the automatic-remand rule –

“appropriate recognition of the duties of the prosecution” – militates even m ore

19
vigorously against a harmless-error analysis. A prosecutor's material breach of a

plea agreement undermines the efficacy, and probity, of the criminal justice

system. It also erodes public confidence in the legitimacy of this system.

A finding of harmlessness – that the breach had no effect on a particular

sentencing court – fails to cure these structural wounds. It does nothing to make

the system whole. In other words, the necessity of preserving the integrity of the

criminal justice process, and the public's faith in this integrity, requires correction

of any material governmental breach, regardless of the sentencing impact of that

breach on a particular defendant and the form of the ultimate remedy. See United

States v. M ondragon, 228 F.3d 978, 981 (9th Cir. 2000) (“The harmless error rule

does not apply when the government breaches a plea agreement. The integrity of

our judicial system requires that the government strictly comply with its

obligations under a plea agreement.” (emphasis added and citations omitted)).

There is nothing in Santobello to suggest that a material breach can be

rendered harmless. The Court never once intimated that in certain situations

relief may not be appropriate. N or did it suggest that, if the remedy of specific

performance was chosen on remand, the underlying breach might be transformed

into an innocuous one. In fact, Santobello only addressed the question of the

nature of the remedy because the impact of the breach itself could not be deemed

20
harmless. 6

W e have adopted, at least implicitly, this reading of Santobello – as holding

that considerations of fairness and the integrity of the judicial system render

harmful any material breach, regardless of the remedy requested. See United

States v. Hawley, 93 F.3d 682, 693-94 (10th Cir. 1996) (holding that defendant

necessarily is entitled to relief from material breach of plea agreement “regardless

of whether the government's conduct actually affected the sentencing judge”).

This reading also has been expressly embraced by virtually every circuit that has

addressed the question of whether to apply harmless error. See Vaval, 404 F.3d at

154-56; M ondragon, 228 F.3d at 981; United States v. Askew, 1999 W L 236187,

at *2 (6th Cir. April 14, 1999) (unpublished); United States v. Clark, 55 F.3d 9,

14 (1st Cir. 1995); United States v. M artin, 788 F.2d 184, 187 (3d Cir. 1986); see

also Correale v. United States, 479 F.2d 944, 949 (1st Cir. 1973). But cf. United

6
The government's proposed approach – determining whether to apply
harmless-error review to a material breach after identifying the remedy to rectify
the government's error – ignores the independent impact of that breach. The
concurring and dissenting opinion's reasoning suffers from the same failing. See
C& D Op. at 1, 3 (Lucero, J., concurring and dissenting). This methodology
incorrectly hinges the availability of harmless-error review upon the particular
remedy that a defendant chooses. It evaluates not the effect of the harm but,
rather, the effectiveness of the desired remedy; that is, its effectiveness in
obtaining an objective that in fact cannot be guaranteed through the plea
bargaining process (i.e., a lesser sentence). Consequently, this methodology
overlooks, and carries the potential to leave uncorrected, the harm to the integrity
of the plea and to the criminal justice system as a whole. This is the very result
that Santobello's automatic-remand rule sought to avoid.

21
States v. William s, 656 F.2d 357, 359 (8th Cir. 1981) (noting Santobello rule

requiring relief but finding breach harmless because district court “effectively

granted specific performance of the plea agreement” through Rule 35 proceeding).

Animating these cases is a recognition that a finding of harmlessness is

impossible because the institutional harm caused by a prosecutor's material breach

transcends any prejudice that a single defendant might suffer from a particular

sentencing outcome. See, e.g., Vaval, 404 F.3d at 154-55; see also Dunn, 247

F.3d at 461-62 (describing rationale for inapplicability of harmless-error review).

As in Santobello, these courts reached a conclusion as to the impossibility of

harmlessness prior to addressing the question of the appropriate remedy. See

Vaval, 404 F.3d at 156; Clark, 55 F.3d at 14-15; M artin, 788 F.2d at 187;

Correale, 479 F.2d at 949.

Significantly, many of these decisions found a harmless-error analysis

inappropriate, even though the courts ultimately ordered the remedy of specific

performance. See Vaval, 404 F.3d at 156 (ordering specific performance);

M ondragon, 228 F.3d at 981 (same); Clark, 55 F.3d at 15 (same); Correale, 479

F.2d at 949-50 (same). In ordering specific performance at a resentencing, these

courts in virtually every instance necessarily accepted the possibility that the

sentence upon remand would be the same. 7 W ithout question, their logic applies

7
To be sure, these decisions did not involve a situation where a
(continued...)

22
with equal force to the instant appeal: a material breach is harmful on a

institutional level, regardless of whether a defendant, who seeks resentencing,

would receive the same sentence absent the breach. See, e.g., Clark, 55 F.3d at

14 (“That the district court did not consider the government’s breaching

sentencing memorandum is irrelevant to the question of whether Clark is entitled

to a remedy.”).

Our decision in United States v. Belt, 89 F.3d 710 (10th Cir. 1996), does

not advance the government’s cause. In Belt, we carved out a legal-impossibility

exception to Santobello's automatic-remand rule. Id. at 713. Specifically, a

prosecutorial breach of a plea agreement can be harmless when a defendant seeks

the remedy of resentencing and it is legally impossible for the sentencing outcome

upon remand to be different. Id. Applying this exception, we held that the

government's breach of its duty not to make a sentence recommendation was

harmless because the defendant sought only the remedy of specific performance

and because the original sentence was the lowest sentence authorized by law. Id.

7
(...continued)
defendant – due to his request – might end up being sentenced in front of the
same judge. That is a somew hat unusual circumstance. Under Santobello, as
discussed further infra, the typical course is to remand to a different judge, when
the remedy will be resentencing. See, e.g., Cachucha, 484 F.3d at 1271.
Arguably, a defendant may be more likely to receive the same sentence if the
judge is the same. However, Santobello has made clear that an identity of
sentencing outcomes is irrelevant to the question of whether relief is appropriate
for a material, prosecutorial breach of a plea agreement. And, as discussed in
text, that holding is supported by very strong institutional concerns.

23
W e stressed that the applicability of harmless-error review was confined to “the

very limited context presented [t]here.” Id.

The Belt exception to Santobello's automatic-remand rule is therefore a

legal anomaly. On these facts, Belt does not speak to the appropriateness of

harmless-error review. Although M r. VanDam seeks the remedy of resentencing,

a lower sentence is legally possible. By its terms, then, Belt is inapposite.

As the government correctly points out, we did not expressly state in Belt

that the circumstances present there “are the only circumstances in which the

breach of a plea agreement may be found harmless.” Aplee. Br. at 21. Given the

profound institutional concerns animating the holding of Santobello, however, w e

are hard pressed to conceive of any other circumstances that would justify

application of harmless-error review.

In summary, the government's proposed harmless-error analysis contradicts

Santobello and the policy concerns that animated its automatic-remand rule.

Because the government's material breach was necessarily harmful, we must now

determine the appropriate remedy.

C. Remedy

M r. VanDam does not seek to vacate his guilty plea. Instead, he requests

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

sentencing judge.

Although the choice of remedy rests with the court rather than the

24
defendant, see Allen v. Hadden, 57 F.3d 1529, 1534 (10th Cir. 1995), we are

inclined to grant M r. VanDam the relief that he requests. Resentencing is the

typical remedy for the breach of a plea agreement. E.g., Brye, 146 F.3d at 1213

(describing two available remedies and noting that defendant may only withdraw

guilty plea when breach is “particularly egregious or intentional”); see United

States v. Camper, 66 F.3d 229, 232 (9th Cir. 1995). W hen, as in this case, the

defendant does not seek to withdraw his guilty plea, the less drastic remedy of

resentencing appears to be most apt. See Cachucha, 484 F.3d at 1271.

W e also conclude on these facts that it is appropriate to permit M r.

VanDam to be sentenced before the same judge, despite the general rule that

resentencing should take place in front of a different judge. 8 See Santobello, 404

8
W e in no way endorse the position that remand to the same judge is
the usual remedy. The District of Columbia Circuit has adopted this view. See,
e.g., United States v. Wolff, 127 F.3d 84, 88 (D .C. Cir. 1997); see also United
States v. Bowler, 585 F.2d 851, 856 (7th Cir. 1978) (finding under facts of case
that judicial reassignment is unnecessary). However, this approach is by far the
minority approach. See U nited States v. Rivera, 357 F.3d 290, 297 (3d Cir. 2004)
(if specific performance is sufficient remedy, defendant must be resentenced by
different judge); Clark, 55 F.3d at 14 (same); United States v. Peglera, 33 F.3d
412, 415 (4th Cir. 1994) (judicial reassignment is “required”); United States v.
Goldfaden, 959 F.2d 1324, 1329 (5th Cir. 1992) (defendant “must be sentenced by
different judge” if “specific performance is called for”); United States v. Yesil,
991 F.2d 1527, 1533 n.7 (11th Cir. 1992) (following “practice of remanding to a
different sentencing judge following the breach of a plea agreement”); United
States v. M cCray, 849 F.2d 304, 306 (8th Cir. 1988) (per curiam) (defendant is
“entitled” to be resentenced by a different judge); United States v. Brody, 808
F.2d 944, 948 (2d Cir. 1986) (requiring judicial reassignment). Even the Ninth
Circuit, which previously subscribed to the minority approach, has recognized
(continued...)

25
U.S. at 263; Cachucha, 484 F.3d at 1271. Santobello did not prohibit same-judge

resentencing in all instances. Cf. Santobello, 404 U.S. at 263 (noting that

“petitioner should be resentenced by a different judge” (emphasis added)). And,

in this instance, resentencing by the same judge will in no way threaten the

institutional principles that motivated Santobello's call for judicial reassignment,

particularly because it is the defendant – the individual victim of the breach –

who is requesting this remedy. Indeed, M r. VanDam's representation that “the

original judge can be fair” eliminates even the appearance of inequity. Aplt. Br.

at 26. Finally, we note that the government has not challenged the same-judge

component of M r. V anDam’s requested remedy.

III. C ON CLU SIO N

For the preceding reasons, we VAC ATE M r. VanDam's sentence and

R EM A N D for resentencing before the same sentencing judge. During the course

of the resentencing proceeding, the government must specifically perform its

obligation to recommend a term of imprisonment at the low end of the Guidelines

range that the district court finds to be applicable.

8
(...continued)
more recently the controlling nature of Santobello's prescription of judicial
reassignment. See Mondragon, 228 F.3d at 981; Camper, 66 F.3d at 232.

26
06-4104, United States v. VanDam
L UC ER O, J., concurring in part and dissenting in part.

I join all but Parts II.B, II.C, and III of the majority opinion. On the rare

occasions in which a defendant does not seek to vacate his guilty plea, but only

requests specific performance of the plea agreement, I would conduct harmless

error analysis.

I disagree with the majority’s conclusion that Santobello v. New York, 404

U.S. 257, 262-63 (1971), controls the outcome of this case. This Circuit has

previously recognized a “very limited context” in which plea-agreement breaches

are subject to harmless error analysis: when “the complained-of effect of the

government’s breach cannot be remedied by resentencing.” U nited States v. Belt,

89 F.3d 710, 713 (10th Cir. 1996). Although the Belt exception is not applicable

here, that case forecloses a strict rule barring harmless error review whenever the

government breaches a plea agreement. I would create a second limited exception

under the circumstances of this case.

The purpose of the remand in Santobello was to allow the state court to

determine whether voiding the plea agreement or simple resentencing would be

appropriate. The full text of the Court’s analysis is as follow s:

W e need not reach the question whether the sentencing judge would
or would not have been influenced had he known all the details of the
negotiations for the plea. He stated that the prosecutor’s
recommendation did not influence him and we have no reason to
doubt that. Nevertheless, we conclude that the interests of justice
and appropriate recognition of the duties of the prosecution in
relation to promises made in the negotiation of pleas of guilty will be
 best served by remanding the case to the state courts for further
consideration. The ultimate relief to which petitioner is entitled we
leave to the discretion of the state court, which is in a better position
to decide whether the circumstances of this case require only that
there be specific performance of the agreement on the plea, in which
case petitioner should be resentenced by a different judge, or
whether, in the view of the state court, the circumstances require
granting the relief sought by petitioner, i.e., the opportunity to
withdraw his plea of guilty. W e emphasize that this is in no sense to
question the fairness of the sentencing judge; the fault here rests on
the prosecutor, not on the sentencing judge.

404 U.S. at 262-63.

As I read this passage, it has relatively little to do with the propriety of

harmless error analysis; instead it primarily concerns the identity of the remedial

decisionmaker. Indeed, the preeminent question in the case was who decides

whether a defendant may withdraw from a plea agreement following a

government breach. Id. at 257-58 (“W e granted certiorari in this case to

determine whether the State’s failure to keep a commitment concerning the

sentence recommendation on a guilty plea required a new trial.”). Justice

M arshall, joined by Justices Brennan and Stewart, argued that the defendant

himself should decide. Id. at 268-69 (M arshall, J., dissenting). Those justices

would have allowed defendants to choose to void a plea agreement when breached

by the government. Justice Douglas concurred in the majority opinion, but wrote

separately to counsel that “a court ought to accord a defendant’s preference

considerable, if not controlling, weight.” Id. at 267 (D ouglas, J., concurring). A

majority of the Court concluded that the state court was “in a better position” to

-2-
make that determination. Id. at 263.

Although the Santobello Court does not explicitly state that harmless error

analysis is inapplicable to breach-of-plea-agreement cases, the majority contends

that the Court necessarily decided that Santobello was entitled to some relief

before addressing what type of relief would be appropriate. I disagree. The

Court first concluded that the state tribunal was the appropriate body to decide

whether Santobello should be permitted to withdraw his guilty plea. Having no

“supervisory jurisdiction” over the state court that would make the withdrawal

decision, id. at 266 (Douglas, J., concurring) (quotation omitted), the Court

simply vacated the judgment below, id. at 263. Once that judgment was vacated,

resentencing (along with specific performance of the plea agreement) would be

necessary if the state denied Santobello the opportunity to void his plea.

Although Santobello would receive some form of relief from the state court under

either route, that result was not based on the Court’s aversion to harmless error

review, but the happenstance of procedural posture.

I share the majority’s concern over the appearance of institutional integrity,

and those countervailing interests make this a difficult issue. Harmless error

analysis is rife with the potential for abuse; as my respected colleague recently

noted, we must avoid building “an ever-increasing floor under [an] unlawful

practice rather than placing a ceiling upon it.” United States v. Nash, 482 F.3d

1209, 1221 (10th Cir. 2007) (M cKay, J., dissenting). Nevertheless, under the

-3-
unique circumstances present in this case, I w ould conduct harmless error review.

-4-