UNITED STATES of America, Plaintiff-Appellee, v. Anthony Dwayne BARNES, Defendant-Appellant, 278 F.3d 644

OPINION CLAY, Circuit Judge. Defendant, Anthony Dwayne Barnes, appeals from the judgment of conviction and sentence entered by the district court on April 21, 2000, following Defendant’s guilty plea conviction for one count of use of a communication facility to facilitate the possession with the intent to distribute marijuana in violation of 21 U.S.C. § 843(b), for which Defendant was sentenced to eighteen months of imprisonment.

On appeal, Defendant contests the imposition of his sentence claiming that the government violated the terms of the plea agreement by not expressly requesting that the district court sentence Defendant at the low end of the guidelines, and claims that his criminal history level was erroneously based upon misdemeanors. For the reasons set forth below, we VACATE Defendant’s sentence and REMAND for resentencing before a different district court judge.

STATEMENT OF FACTS On November 19, 1999, Defendant pleaded guilty to using a communication facility-a telephone-to facilitate the commission of a drug felony; namely, “possession with intent to distribute marijuana, in violation of Title 21, United States Code,

Section 843(

b) and Title 18, United States Code,

Section 2.” As part of the plea agreement, “[t]he government agree[d] to recommend that the Defendant be sentenced at the low end of the applicable sentencing guideline range.” The plea agreement also provided that “[t]he government agree[d] to recommend that the defendant’s base offense level be calculated using two pounds of marijuana.” At sentencing, the court found Defendant’s criminal history level was six, his sentencing range was determined to be twelve to eighteen months, and the court sentenced Defendant to eighteen months’ imprisonment.

DISCUSSION Defendant first argues that his sentence should be reversed and his case remanded because the government breached the plea agreement by not recommending at sentencing that Defendant be sentenced at the low end of the guidelines as set forth in the plea agreement. We review the question of whether the government’s conduct, or lack thereof, violated its plea agreement with a defendant de novo. See United States v. Wells, 211 F.3d 988, 995 (6th Cir.2000).

However, because Defendant failed to object after the government did not offer a recommendation at sentencing, Defendant waived his right to appeal any breach of the plea agreement, and a plain error analysis thus guides this Court’s review. See United States v. Carr, 170 F.3d 572, 577 (6th Cir.1999); United States v. Cullens, 67 F.3d 123, 124 (6th Cir.1995); see also Teeple v. United States, No. 00-1389, 2001 WL 873644, at *1 (6th Cir. July 26, 2001) (unpublished opinion).

When reviewing a claim under a plain error standard, this Court may only reverse if it is found that (1) there is an error; (2) that is plain; (3) which affected the defendant’s substantial rights; and (4) that seriously affected the fairness, integrity or public reputation of the judicial proceedings. See United States v. Carter, 236 F.3d 777, 783-84 (6th Cir.2001). Defendant’s plea agreement indicates that the government expressly agreed to recommend that Defendant be sentenced at the low end of the guidelines.

The plea agreement was read verbatim to Defendant by the district court at the change of plea hearing, at which time the court acknowledged that the government recommended that Defendant be sentenced at the low end of the guidelines, while Defendant acknowledged that the court was not bound by that recommendation.

Specifically, the following exchange took place between the court and Defendant at his plea hearing: THE COURT: And do you understand that the recommendations of the plea agreement with respect to the calculation of the sentencing guidelines and your receiving credit for acceptance of responsibility and your being sentenced at the low end of the guideline range, that those are all recommendations to the court? Do you understand that the judge does not have to accept those recommendations. THE DEFENDANT: Yes, ma’am. (J.A. at 32-33).

However, at Defendant’s sentencing, the government failed to state this recommendation on the record. In Cohen v. United States, 593 F.2d 766, 771-72 (6th Cir.1979), this Court recognized that “[t]he leading decision on the question of the consequences of the failure of prosecuting authorities to abide by a plea bargain agreement is Santobello v.

New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).” We went on to note that in Santobello, “the sentencing judge specifically stated that he was not concerned with the alleged breach of a plea bargain agreement because he was ‘not at all influenced by what the District Attorney says.’ ” Cohen, 593 F.2d at 771 (citing Santobello, 404 U.S. at 262-64, 92 S.Ct. at 499). We then recognized the Supreme Court’s holding in Santobello that “notwithstanding this disclaimer the defendant would be entitled to relief if he established a breach of the plea agreement.” Cohen, 593 F.2d at 771.

Quoting from Santobello, we opined: [Wjhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled. We 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 negotiations of pleas of guilty will be best served by remanding the case to the state courts for further consideration .... We 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. Cohen, 593 F.2d at 771 (emphasis added) (quoting Santobello, 404 U.S. at 262-64, 92 S.Ct. at 499).

This Court then held that, [a]s the touchstone of Santobello is whether the prosecution met its commitment and not whether the court would have adopted the government’s recommendation, it necessarily follows that in this case the Parole Board’s awareness of and/or disinclination to adopt the terms and conditions of the plea agreement would be irrelevant Cohen, 593 F.2d at 772 (emphasis added; footnote omitted).

The fact that our review is guided by a plain error standard does not effect the application of Santobello, Cohen, and their progeny inasmuch as is well-settled that when a defendant pleads guilty in reliance on a plea agreement, he waives certain fundamental constitutional rights such as the right to trial by jury. See Peavy v. United States, 31 F.3d 1341,1346 (6th Cir.1994); United States v. Clark, 55 F.3d 9, 12 (1st Cir.1995).

Because a defendant is foregoing these precious constitutional guarantees when entering into a plea agreement with the government, it is essential that “fairness” on the part of the prosecutor is presupposed. See Santobello, 404 U.S. at 261, 92 S.Ct. 495. In this context, “ ‘fundamental fairness means that the courts will enforce promises made during the plea bargaining process that induce a criminal defendant to waive his constitutional rights and plead guilty.’” United States v. Robison, 924 F.2d 612, 613 (6th Cir.1991) (quoting Staten v. Neal, 880 F.2d 962, 963 (7th Cir.1989)).

Because the agreement is premised upon a “fundamental fairness” so as to insure that a defendant does not forego precious constitutional rights in vain, it has been found that [t]he Government’s failure to argue the terms of [the plea agreement] to the district court at the sentencing hearing constituted a breach of the plea agreement.

And because violations of the plea agreements on the part of the government serve not only to violate the constitutional rights of the defendant, but directly involve the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government, we hold that the Government’s breach constituted plain error. United States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997) (citation and internal quotation marks omitted); see also United States v.

Myers, 32 F.3d 411, 413 (9th Cir.1994) (“It was insufficient that the court, by reading the presentence report and the plea agreement, was aware that the government had agreed to recommend a sentence at the low end of the guideline range. The harmless error rule does not apply to the law of contractual plea agreements.”). Indeed, several circuits have gone so far as to hold that a de novo standard is used when reviewing a defendant’s claim that the government breached the plea agreement regardless of whether the defendant objected to the alleged breach at sentencing. See United States v.

Lawlor, 168 F.3d 633, 636 (2d Cir.1999) (holding that the defendant was not required to object to violations of the plea agreement at sentencing and that failure to do so neither waived the defendant’s right to appeal nor required the court to conduct a plain error review); United States v. Courtois, 131 F.3d 937, 938 & n. 2 (10th Cir.1997) (same); United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.1989) (same).

Accordingly, where this Court has opined in binding precedent that the fact that a sentencing court may have implied that it would not have accepted a certain recommendation made by the government in a plea agreement, and the fact that the district court may have read and had the plea agreement before it, are insufficient reasons to find that the government upheld its part of a given plea agreement, the government breached the plea agreement in the matter at hand by failing to expressly request that Defendant be sentenced at the low end of the guidelines range.

See Cohen, 593 F.2d at 772; see also Santobello, 404 U.S. at 262-63, 92 S.Ct. 495. In addition, the government’s breach amounted to reversible error under a plain error standard of review, inasmuch as the breach violated Defendant’s constitutional rights such that the fundamental fairness and integrity of the judicial proceeding were compromised.

See Robison, 924 F.2d at 613; McQueen, 108 F.3d at 66; see also Santobello, 404 U.S. at 262, 92 S.Ct. 495 (finding that where a defendant fulfills his promise in entering into a guilty plea, the prosecution is bound to fulfill any promise made in exchange, in order to insure the “fairness” of the plea bargaining process which has come to be known as an essential and desirable practice in the administration of criminal justice).

CONCLUSION Because we hold that Defendant’s substantial rights were affected by the government’s failure to adhere to the letter of the plea agreement by expressly recommending that Defendant be sentenced at the low end of the guidelines at sentencing, which affected the integrity of the judicial proceeding, we VACATE Defendant’s sentence and REMAND for resentencing before a different district court judge, while intending no criticism to the sentencing judge here. See Santobello, 404 U.S. at 263, 92 S.Ct. 495; see also United States v.

Mondragon, 228 F.3d 978, 981 (9th Cir.2000) (“[W]e are required to ... remand for re-sentencing before a different judge.... We emphasize that this is in no sense to question the fairness of the sentencing judge_We remand to a different judge for re-sentencing because the case law requires us to do so. We intend no criticism of the district judge by this action, and none should be inferred.”); United States v.

McQueen, 108 F.3d 64, 66 (4th Cir.1997) (“Because the Government committed plain error in breaching the plea agreement, we grant McQueen the requested specific performance and remand his case to a different judge for resentencing.”); United States v. Canada, 960 F.2d 263, 271 & n. 9 (1st Cir.1992) (“Santobello 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.’ ”); United States v.

Grandinetti, 564 F.2d 723, 727 (5th Cir.1977). In light of our holding, we need not address Defendant’s claim regarding the calculation of his criminal history level. . We are cognizant of this Court's holding to the contrary in the unpublished case of Teeple v. United States, No. 00-1389, 2001 WL 873644 (6th Cir. July 26, 2001).

However, because Teeple is an unpublished decision from this Court, and therefore not binding; because Teeple is in direct contravention of binding published authority from this Circuit; and because the published decisions from several of our sister circuits hold contrary to Teeple, we decline to follow Teeple's result.