Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 263 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Thomas Dean BERANEK, Defendant-Appellant.

No. 89-10507.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 13, 1990.^* Decided Sept. 12, 1990.

Before CHAMBERS, KOZINSKI and NOONAN, Circuit Judges.

MEMORANDUM^**

Beranek appeals his sentence on the ground that the government's conduct at the time of sentencing breached the plea agreement. We agree. When a plea rests on a promise made by the prosecutor, that promise must be fulfilled. Santobello v New York, 404 US 257, 262 (1971). The Assistant United States Attorney failed to live up to his agreement with the defendant by making statements which were inconsistent with the sentencing recommendation he had made pursuant to the plea bargain. See United States v Brown, 500 F2d 375 (4th Cir1974); United States v Grandinetti, 564 F2d 723 (5th Cir 1977).

We vacate defendant's sentence and remand for resentencing. To avoid the appearance of conflict, Judge Marquez will probably let another judge do the resentencing.

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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