United States v. Velez Carrero ( 1996 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                For the First Circuit




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        No. 95-1351



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                              MOISES LUIS VELEZ CARRERO,



                                Defendant, Appellant.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                     [Hon. D. Brock Hornby,* U.S. District Judge]
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                                        Before



                                Selya, Cyr and Lynch,



                                   Circuit Judges.
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             Jorge E. Rivera-Ortiz on brief for appellant.
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             Guillermo  Gil,  United  States   Attorney,  Nelson  Perez  Sosa,
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        Assistant  United States Attorney, and Jose A. Quiles-Espinosa, Senior
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        Litigation Counsel, on brief for appellee.






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                                  February 27, 1996


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             *Of the District of Maine, sitting by designation.

























                    CYR, Circuit  Judge.  Defendant-appellant  Moises Velez
CYR, Circuit  Judge
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          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
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          (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-
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          trality.  This  is no mere terminological distinction.   The quid
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          pro quo from the  defendant's point of view in this  case was the
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          prestige of  the government  and its  potential to  influence the
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          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),
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          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).
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                    Accordingly,  we vacate  the sentence  and remand  with
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          orders that Velez  be resentenced by a different judge.  See Loc.
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          R. 27.1.1












































































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               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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