United States v. Oakes, No. 11-6005 (10th Cir. 2012)
Annotate this CaseUpon entering a plea agreement with the government, Defendant Marcus Oakes pled guilty in the United States District Court for the Western District of Oklahoma to one count of distributing cocaine base. At the sentencing hearing, the government breached its promise in the plea agreement not to oppose Defendant's request that his sentence be concurrent with a prior federal sentence, and the district court sentenced him to 37 months' imprisonment to run consecutively to the other sentence. When the breach was brought to the court's attention a few minutes later, the court struck from the record the improper part of the government's argument but resentenced Defendant to the same consecutive sentence. On appeal Defendant contended that the breach required that his sentence be vacated and resentencing be set before a different judge. Upon review, the Tenth Circuit affirmed the district court: "Defendant does not seek, and we would not order, that he be allowed to withdraw his plea. Therefore, the sole remedy for the government's breach is resentencing. Ordinarily, we would order resentencing before another judge. But a defendant can choose to be resentenced before the same judge, that choice can properly be made by defense counsel, and defense counsel made that choice below. Hence, there is no further remedy available for Defendant on direct appeal."
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