US v. Magdaleno Santibanez-Hernandez, No. 12-4808 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4808 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAGDALENO SANTIBANEZ-HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:10-cr-00018-MR-DLH-1) Submitted: June 11, 2013 Decided: July 5, 2013 Before DAVIS, KEENAN, and THACKER, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Henderson Hill, Executive Director, Ann L. Hester, Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Magdaleno unlawfully Santibanez-Hernandez reentering the United pled States after guilty removal to as an aggravated felon, in violation of 8 U.S.C. ยง 1326(a), (b)(2) (2006). Santibanez-Hernandez pled guilty pursuant to an oral plea agreement, in which the Government agreed not to oppose the federal sentence running concurrently Hernandez s undischarged state sentence. with Santibanez- On appeal, Santibanez- Hernandez argues that the Government breached the plea agreement by initially sentence. advocating We for agree therefore, and, imposition vacate of a the consecutive sentence and remand. At sentencing, Santibanez-Hernandez s in support of a concurrent sentence. counsel argued When the court sought the Government s position on sentencing, the prosecutor responded that the time that [Santibanez-Hernandez] received from the state, as well as the time that the [c]ourt may impose today is warranted. It s a situation where Mr. Hernandez has engaged in drug trafficking for a long time, has received sentences and has not learned his lesson. And we do believe that there is a deterrent value in running his sentences consecutively . . . . (J.A. 91). 1 1 J.A refers to the joint appendix filed by the parties. 2 After Santibanez-Hernandez s counsel noted that the parties had agreed during plea negotiations that the Government would not oppose acknowledged its a concurrent mistake. The sentence, court the Government suggested that the Government may wish to strike its argument, and the Government agreed, acknowledging that its argument was inconsistent with [its] earlier position in this case. (J.A. 93). The district court proceeded to sentence Santibanez-Hernandez to a term of fifty months Guidelines in prison. generally Concluding favored that the consecutive Sentencing sentences, the court declined to direct that the federal sentence run concurrently with Santibanez-Hernandez s outstanding state sentence, even though it recognized that ordinarily this [c]ourt would give much credence to . . . [a plea] agreement. (J.A. 96). Where, as here, a party raised the issue of breach in the district court, we review the district court s factual findings for clear error and its application of principles of contract interpretation de novo. F.3d 262, 267 (4th Cir. 2011) United States v. Lewis, 633 (internal quotation marks omitted); see United States v. Diaz-Jimenez, 622 F.3d 692, 69394 (7th Cir. 2010) (finding defendant s objection sufficient to preserve issue for appeal despite failure to renew objection after government s attempt to cure breach); cf. Puckett v. United States, 556 U.S. 129, 133 (2009) (applying plain-error 3 standard where at no time during [sentencing] did [defense] counsel object that the Government was violating its obligations under the plea agreement ). A plea agreement is breached when a government promise that induces the plea goes unfulfilled. See Santobello v. New York, initially 404 U.S. 257, 262 (1971). By opposing a concurrent sentence, the Government here did not fulfill its obligations under the plea agreement. See United States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994). After sentencing court Santibanez-Hernandez s of the withdrew its argument. Government s counsel promise, informed the the Government This is not sufficient to excuse the Government s failure to comply with its promise made in the plea agreement; resentencing is required under Santobello regardless of the judge s awareness of the government s real position as indicated in the plea agreement. Id. (citing United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990)). Santobello nowhere suggested offending recommendation that with a mere The Court in withdrawal substitution of recommendation would have been a sufficient remedy. 918 F.2d at 302. the of the agreed Kurkculer, To excuse plea agreement breaches in light of later attempted mitigation would lessen the government s duty of strict compliance and thereby compromise the integrity of the 4 judicial system. United States v. Alcala-Sanchez, 666 F.3d 571, 577 (9th Cir. 2012). Because the Government breached the plea agreement, we grant Santibanez-Hernandez the requested specific performance, vacate his different sentence, district and judge. 2 remand We for resentencing dispense with oral before a argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED AND REMANDED 2 Our direction that resentencing proceed before a different district judge is consistent with this court s usual practice when a breach of a plea has occurred. See, e.g., United States v. Dawson, 587 F.3d 640, 648 (4th Cir. 2009). We emphasize that this is in no sense to question the fairness of the sentencing judge. Santobello, 404 U.S. at 263. 5
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