United States v. Velez Carrero

First Circuit

United States v. Velez Carrero

77 F.3d 11, 1996 U.S. App. LEXIS 3162, 1996 WL 75731

CourtCourt of Appeals for the First Circuit

DecidedFebruary 27, 1996

Docket95-1351

StatusPublished

Cited by28 cases

This text of 77 F.3d 11 (United States v. Velez Carrero) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Velez Carrero, 77 F.3d 11, 1996 U.S. App. LEXIS 3162, 1996 WL 75731 (1st Cir. 1996).

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Opinion

CYR, Circuit Judge.

Defendant-appellant Moisés Velez 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 neutrality. This is no mere terminological distinction. The quid pro quo *12 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, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (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 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 resen-tenced by a different judge. See Loc.R. 27.1. 1

1

. In 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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CYR, Circuit Judge.

Defendant-appellant Moisés Velez 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 neutrality. This is no mere terminological distinction. The quid pro quo *12 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, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (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 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 resen-tenced by a different judge. See Loc.R. 27.1. 1

1

. In 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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77 F.3d 11, 1996 U.S. App. LEXIS 3162, 1996 WL 75731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-velez-carrero-ca1-1996.

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