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with him.
Agreeing, we remand
for resentencing.
I.
I.
__
BACKGROUND
BACKGROUND
__________
On
June
1,
1994,
Clark
waived
his
right
to
indictment
stemming
and pleaded
from
guilty
to
kidnapping.
a two-count
Count
information
I charged
him
with
violation of 18 U.S.C.
1951, and
1951.
by
interviews
a presentence
the
Investigation
probation
office.
Report indicated
of Clark's
the district
The
that during
co-defendants, the
to be
Presentence
the presentence
probation officer
had attempted to
induce two
of his
co-
-33
Because of
to obstruct
justice
and recommended
a two-level
conclusions.
Prior to Clark's sentencing hearing, the government
submitted
to
proposed
Clark's
guideline
alleged
contained a
entitled
Clark
the court
objected
contending
to
the
an
to
of
memorandum outlining
be taken
justice.
discussion
about
in
to the
government's
breached
when
the
whether
Clark
was
adjustment.
agreement.
Defense
government
of
sentencing memorandum,
the plea
a motion to withdraw
light
The memorandum
acceptance-of-responsibility
court that
agreement, the
on
obstruction
that it
counsel filed
sentencing
adjustments
two-page
to
breaches
plea
plea.
the plea
the government's
sentencing
the
memorandum.
After
denying
three-level
downward
adjustment
for acceptance
of
responsibility, the
-44
court imposed a
obstruction
and
the
standard
of
government
disagree
review, Clark
claiming
as
to
the
that
our
error.
United States v.
_____________
As we have
previously acknowledged,
13, 16 n.2
(1st Cir. 1992), in some cases we have stated that our review
is de
__
novo, while
____
review is
Kingsley
________
(de
__
Cir.
for clear
v.
error.
cases we have
Compare id.
_______ ___
stated that
at 16
our
(de novo);
__ ____
in other
v. Tilley,
______
Giorgi, 840
______
1082
1028 (1st
Gonzalez-Sanchez,
________________
825 F.2d 572, 578 (1st Cir.) (clear error), cert. denied, 484
_____ ______
-55
U.S. 989 (1987); United States v. Khoury, 755 F.2d 1071, 1073
_____________
______
(1st Cir. 1985) (clear
error).
We take this
opportunity to
the
government
consideration, one
present
two
allegedly breached
separate
factual, the
issues
other legal.
for
our
First, there
are
are
and
what
Giorgi,
______
840
the government's
F.2d
at
1028-29
expectations of parties to
agreement
related
to
thefts
or
hijackings
United States,
_____________
1994) (remanding
to district
If
government promised
to
e.g.,
____
reasonable
"any
criminal
acts
of
vans"
barred
later
30 F.3d 220,
court to make
as
part of
into witness
eliminated);
223 (1st
Cir.
factual finding
plea agreement
to
protection program).
questions are to
plea
for
defendant's entry
See,
___
accord Bemis v.
______ _____
secure
was.
(looking
foreclosing prosecution
whether
conduct
be resolved by
1028.
Second,
there is
of whether
963
F.2d at
479
(government did
the
See, e.g.,
___ ____
not
breach plea
views on
defendant's
-66
agreement
requiring it
to
offer its
Because
constituted
plenary.
a breach
whether
is a
government's
question of
law, our
conduct
review is
Id. at 478.
___
Here, we are not faced with disputed facts.
we
must determine
only the
legal question
of
Thus,
whether the
plea agreement,
__________
Supreme
Court
________
declared
significant
degree
prosecutor,
so
that
on
that it
"when a
promise
can
be
plea
or
said
rests
in
any
agreement
of
the
be part
of
the
to
at 262.
Because
hold prosecutors
F.2d
944,
947
Kurkculer, "[t]he
_________
defendant
(1st
Cir.
government must
As
we
stated
in
or the
918 F.2d at
297.
We
agreements
are
by
guided
general
in
our
principles
-77
interpretation
of contract
of
plea
law.
See
___
at 479; Giorgi,
______
840 F.2d at
1025.
As
we
explained in Gonzalez-Sanchez,
________________
When a defendant has entered into a plea
agreement with the government, the court
must ensure that he receives what is
reasonably due him under the agreement.
Contractual principles apply insofar as
they are relevant in determining what the
government "owes" the defendant. If the
defendant lives up to his end of the
bargain, the government is bound to its
promises.
825
v.
matter of
are subject
think
agreement in this
that the
case.
As part of
three-level
Nonetheless,
reduction for
the
government
government
breached its
plea
the consideration
for
of responsibility.
opposed
such
plea agreement
rigidly
literal
approach
in
the
construction
of
be
argued that
repudiating
the government
the agreement,
stopped short
Santobello
__________
of explicitly
prohibits
not
only
the interests
of
fairness be
read
to forbid
end-runs
of the
____________________
1. U.S.S.G.
3E1.1 deals with adjustments for acceptance of
responsibility.
Application note 4 provides:
"Conduct
resulting in an enhancement under
3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his
criminal conduct. There may, however, be extraordinary cases
in which adjustments under both
3C1.1 and 3E1.1 may apply."
-99
Cf.
___
attempt to do by indirection
By stating that it
the plea
agreement, the
made this
what it
now.2
knows
government indicated
The government's
that it
it known
"references to
then
the
269, despite our rule that "it is improper for the prosecutor
to inject material reservations
the
government
acceptance-of-responsibility
also argued that there
exception
adjustment
even
adjustment was
it
thought
no
appropriate, it
allowing
when
1978) (finding
equivocal comments").
suggest that
Cf. United
___ ______
an
there
acceptance-of-responsibility
has
been
an
obstruction
of
justice.
____________________
2. At no time has the government argued that it was released
from the plea agreement because Clark himself breached the
plea agreement by obstructing justice.
-1010
In arguing that
breach the
not
relies on another
on
this
language,
the government
argues
270
its
We do not agree.
that
While it is true
but the duty to
`level'
with
calculations
the
court
relevant
at all times
as
correct
to
to guideline
the
facts
and
sentencing."); Voccola,
_______
duty to disclose
information
in
its
to the court
possession."),
we
pertinent
think
the
that it
opposed an
adjustment for
acceptance of
-1111
argued against it by
stating
an
significant
agreement.
the
government's
acceptance-of-responsibility
factor
in
promise not
adjustment
defendant's decision
to
was
to
a
accept the
Therefore, the
district court's
____________________________
"[A] prosecutorial
or
failure to fulfill
a promise
of judicial refusal to
awareness of
Thus,
even
the impropriety."
if,
as
in
this
the defendant
See Santobello,
___ __________
404 U.S.
the
at 949.
sentencing
had no effect on
is still entitled
at 262
judge
the
to a
(remanding for
____________________
3. Of course, minor deviations from the plea agreement will
not mandate resentencing. This is because minor deviations
do not affect the consideration due the defendant under the
plea agreement.
Cf. Santobello, 404 U.S. at 262 ("when a
___ __________
plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration, such promise must be
_______________________________________
fulfilled") (emphasis added); Panzardi-Alvarez, 879 F.2d at
________________
986 ("The government may not breach any term of a plea
agreement which induced the defendant to plead guilty.")
_____________
(emphasis added).
See Correale, 479 F.2d at 947 ("we do not
___ ________
-1212
remedy
even
though
sentencing
judge
"stated
that
the
As we explained in Correale,
________
The
reason [the
government's breach
cannot be harmless] is obvious; it is the
defendant's
rights
which are
being
violated when the plea
agreement is
broken or meaningless.
It is his waiver
which must be voluntary and knowing.
He
offers that waiver not in exchange for
the actual sentence or impact on the
judge,
but
for
the
prosecutor's
statements in court.
If they are not
adequate, the waiver is ineffective.
479 F.2d at 949.
In
government,
this case,
the
consider the
district court
finding no
stated
government's sentencing
district court
(as
despite
opposed to
situation
initially
presentence
in
suggested
report
sentencing
but
recommendation breached
recommendation and
____________________
then,
the
in
in
after
it would
not
memorandum.
That the
being influenced
Kurkculer,
_________
the
that
breach by
which
by it)
We confronted a
the prosecutor
accordance
learning
plea agreement,
will not
with
the
that
such
withdrew
that
in the plea
agreement.
We
held
that
the
defendant
needed
to
be
resentenced, explaining,
The Court in Santobello nowhere suggested
__________
that a mere withdrawal of the offending
recommendation with substitution of the
agreed recommendation would have been a
sufficient remedy. While no such attempt
was made in Santobello, its futility is
__________
suggested by the Court's comment that "at
this stage the prosecution is not in a
good
position
to
argue
that
its
inadvertent
breach
of agreement
is
immaterial. . . . That the breach of
agreement was inadvertent does not lessen
its impact."
Kurkculer, 918 F.2d at
_________
its sentencing
U.S. at
entitled to a remedy.
still
Santobello, the
__________
ways to
agreement:
Supreme
Court indicated
giving the
defendant "the
that
breach of
opportunity to
404 U.S.
at 263.
In unusual
950 (using
impose
equitable powers
a specific
circumstances, we
to remand with
sentence
because such
instructions to
sentence was
the
-1414
"only
just
remedy
approximate specific
specific
performance
and
the
only
enforcement
is
one
of the
sufficient
which
could
agreement").
remedy,
then
now
If
the
defendant
must
be
resentenced
by
different
judge.
choice
of
remedy
is normally
263.
preference
__________
This
for
court, however,
specific
resentencing before
pleas," Kurkculer,
_________
for "[o]nce that
says
he
has "repeatedly
a different judge
is done,
was promised,'"
of
the
rather than
by
vacating
in original),
a defendant `will
(quoting
expressed a
the agreement
at 300 (emphasis
id.
___
to
performance
918 F.2d
left
obtain all
McAleney v.
________
he
United
______
specific performance.
that
"specific performance
Rather, he requests
In similar cases,
by resentencing
we have held
is all
that is
-1515
Id.
___
See also Canada, 960 F.2d at 271 ("Here Canada seeks and
___ ____ ______
we grant [specific
circumstances of
performance].
this case
We do not
demand the
find that
greater remedy
the
of a
we
remand
this
case
with
orders
that
Clark
be
-1616
III.
III.
____
CONCLUSION
CONCLUSION
__________
Because we
government breached
another judge.
In light of our
resentenced, we
error.4
its
must be
other assignments of
____________________
4. Clark argues that the district court erred in not
construing certain statements in the light most favorable to
him, in finding that he obstructed justice, and in applying
the preponderance-of-the-evidence standard instead of the
reasonable-doubt
standard
to
determine whether
Clark
obstructed justice.
-1717