Unpublished Disposition, 881 F.2d 1085 (9th Cir. 1989)

MEMORANDUM^** 

Virginia M. Sanders appeals her sentence of four years imprisonment for using a telephone to facilitate a narcotics conspiracy. Sanders contends that she was denied her right to allocution at sentencing and that the government breached its plea agreement obligations. We remand for resentencing.

Sanders argues that she was denied her right to allocution at sentencing because the sentencing judge failed to ask her whether she wished to make a statement on her own behalf at the sentencing hearing. A defendant has the right of allocution prior to sentencing. United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir. 1980). Before imposing sentence, the sentencing judge must "address the defendant personally and ask [her] if [she] wishes to make a statement in [her] own behalf and to present any information in mitigation of sentence." Fed. R. Crim. P. 32(a) (1) (c); see Green v. United States, 365 U.S. 301, 304 (1961) (right to speak on own behalf and right to present mitigating information are two distinct rights). A trial judge "should leave no room for doubt that the defendant has been issued a personal invitation to speak." Navarro-Flores, 628 F.2d at 1184 (quoting Green, 365 U.S. at 305).

The government argues that the sentencing judge's invitation to speak was merely poorly phrased. The question is whether we can read the record before us as unambiguously affording Sanders the opportunity to speak on her own behalf. The sentencing judge asked Sanders: "do your find any errors in the presentencing report, other than the ones that your lawyers have mentioned?" We are not satisfied that the question conveyed an unambiguous invitation to speak. An invitation for only counsel to speak does not comply with the rule. Id. The sentencing judge's query can be interpreted to invite comment only on subjects not covered by counsel. It can also be interpreted to invite comment only on error in the pre-sentence report. We therefore cannot say that there was "no room for doubt" that Sanders was issued a personal invitation to speak.

Sanders also argues that the government breached the plea agreement. She raises two claims in support of this contention. First, the government failed to inform the sentencing judge of Sanders's cooperation with the DEA. Second, the government failed to recommend leniency. Although Sanders's counsel informed the court of the extent of cooperation, the government did not adopt Sanders's counsel's statement. Plea bargains are "contractual in nature and must be measured by contract law standards." United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988) (quoting United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986). The government must strictly abide by the terms of the plea agreement, see Santobello v. New York, 404 U.S. 257 (1971), and fulfill all of the promises it made to induce the plea. United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). The record should show that this requirement was met.

Sanders also claims the government breached the plea agreement by not recommending leniency at sentencing. The plea agreement required the government to recommend leniency only if the DEA determined that leniency was warranted. Though the government may not have been required to recommend leniency, the record does not adequately show whether the recommendation was required.

Sanders's sentence is vacated and the cause remanded. Before resentencing, the district court should ensure that the government has fully complied with the terms of the plea agreement. The government can fulfill its obligations under the agreement by informing the court both of the extent of Sanders's cooperation and of whether the DEA determined leniency to be warranted.

The $50.00 special assessment fee levied on Sanders pursuant to 18 U.S.C. § 3013 is also vacated. The assessment is unconstitutional. See United States v. Anguiano, 873 F.2d 1314, 1321 (9th Cir. 1989).

REMANDED.