Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

MEMORANDUM^** 

Ernest Bernard Moore appeals the district court's order declining to vacate his sentence under 28 U.S.C. § 2255. Moore argues that the government violated the terms of its plea agreement with him. We vacate the district court's judgment and remand for resentencing.

Moore alleges that the government promised in the plea agreement not to recommend a specific period of confinement to the court at the time of sentencing.¹  Moore contends that the government broke this promise by asking the district court to impose a "lengthy, a very, very lengthy period of incarceration."

After the government requested a very lengthy period of incarceration during the sentencing hearing, Moore's attorney immediately requested the court to disregard the government's statement because it violated the plea agreement. In response to Moore's attorney, the district court stated at the sentencing hearing:

I believe that's correct. I believe the agreement included the fact that there would be no statement as to a specific term. I understand that. I will disregard it. He didn't make a specific reference but he made a general reference, and I don't think it's necessary for me to consider it.

On Moore's motion to vacate his sentence based on the government's comment, the district court decided not to vacate Moore's sentence because the court had disregarded the government's suggestion. The court explained:

This Court has reviewed the transcripts of the sentencing hearing and the plea agreement in this case. The plea agreement in this case included a restriction on the Government in stating its position on the term of imprisonment to be imposed at the time of sentencing. It may be arguable that the generic statement made by the U.S. Attorney at the time of sentencing violated the agreement. It is not necessary to decide that issue, however, as the Court considers it to be moot. Defendant's counsel asked the Court to disregard [the] statement concerning the length of defendant's sentence, and the Court did so.

We vacate the district court's decision because the alleged violation of the plea agreement was not rendered moot when the district court decided to disregard the government's statement. In Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court held that even when district judges are not influenced by comments made by the government in violation of a plea agreement, "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."

On remand, the district court should decide the issue it left unresolved--whether the government's statement violated the plea agreement.

VACATED AND REMANDED.