United States v. VanDam

they status at the time career offender Again, do agreement.9 we

negotiated never this issue because Samuels

not reach the district court to vacate the

requested Callahan, 471 F.3d at

plea agreement.10

1161.

AFFIRMED. America,

UNITED STATES of

Plaintiff-Appellee, VANDAM, Dale

Leonard also known as Lopez,

Sebastian also known as Se Lopez Mendoza,

bastian Defendant-

Appellant.

No. 06-4104. Appeals,

United States Court of

Tenth Circuit.

July circumstances, 1999) (unpublished). Unpublished opinions In similar where the agreement knowledge binding precedent. We was made with that an are not mention Ah- persuasive non-binding estimated lenius because of its value. sentence is on the court, 32.1(A). R.App. P. we found a could avoid See 10th Cir. defendant based on a mutual mistake in calculating sentencing guideline challenge appeal, 10. On Samuels does not disposition analogy via an of motions his to the doctrine of frustration of district court’s Ahlenius, made, i.e., purpose. actually United States v. counsel motions departure WL downward and for variance. *3 Cir. Oct. Pincus, Federal A. Assistant

Howard Moore, Fed- (Raymond P. Public Defender Defender, with him on eral Public briefs), Denver, CO, for the Defendant- Appellant. of the United Hagen, Office

Diana (Brett L. Attorney, of Utah District States Tolman, Attorney, Stephen States United Sorenson, Agreement At- Assistant United States A. Plea J. brief), on the Salt Lake torney, with her After Mr. unsuccessfully VanDam UT, City, Plaintiff-Appellee. for the suppress moved to the evidence seized in connection with the 2001 inci- October LUCERO, McKAY, and Before dent, he entered into a conditional HOLMES, Judges. Circuit government. with the Mr. 17, pleaded guilty VanDam to the October HOLMES, Judge. Circuit drug trafficking charge and to the Dale VanDam ar- Defendant Leonard felon-in-possession charge, although he re- gues breached its right appeal suppression served his duty plea agreement by failing under his In ruling. exchange, imprisonment to recommend a term of 25, dropped February 2002 drug-traf- applicable range the bottom of the alia, ficking charge and, agreed inter Sentencing the United States Guidelines “recommend at the low end of Mr, (the “Guidelines”). remedy, As a Van- guideline R., applicable.” found Dam specific performance before the ¶ seeks II, 48, 11(C), Supp. Vol. Doc. No. at 4. same judge. The district court accepted Mr. VanDanfs 13, guilty plea on December 2002. breached agree

We agree We also on Sentencing B. First that Mr. these facts VanDam should re- The Presentence Investigation Report requested remedy. Accordingly, ceive his (“PSR”) recommended a Guidelines jurisdiction exercising our under 18 U.S.C. of 188 to 235 of imprisonment, months 3742(a)(1) 1291, § § and 28 U.S.C. we VA- upon based total offense level of In 33. CATE Mr. VanDam’s sentence and RE- calculating pursuant the base level offense MAND sentencing judge to the same for 2D1.1, § Guidelines the PSR converted resentencing. posses- cash found Mr. VanDam’s- 17, sion on quantity 2001 into a October I. BACKGROUND methamphetamine and into a mari- then 19, 2001, Mr. On December VanDam juana equivalent. charged possession with one count of At sentencing, the district court chose methamphetamine with intent to distrib- not to convert the cash attributed to Mr. ute, 841(a)(1), § violation of U.S.C. drug VanDam into a equivalent pur- for possession and with one count of of a poses of calculating his base offense level. felon, in firearm as a violation of 18 U.S.C. conversion, Without the the district court § 922(g)(2). found Mr. VanDam’s total offense level to 31, yielded rather superseding filed in- than This 24, of 151 to April supersed- dictment on 2002. The 188 months. The district court then drug indictment' added a second traf- chose to sentence Mr. VanDam in the ficking charge. drug range, The two middle trafficking stemmed, period to a- 168-month charges respectively, from inci- incarceration. February dents on October and Appeal C.First 25, 2002. The police state arrested Mr. VanDam on each occasion. The firearm Mr. appealed VanDam the denial of his charge was linked suppress. appeal, the October motion to gov- On 2001 incident. ernment conceded that the district found in court’s sentence of 168 months suppressed have a firearm agreed vehicle. This Court was still a “reasonable sentence.” Id. Mr. VanDam’s obtained.1 illegally firearm was sentencing hearing A on was conducted VanDam, 03- No. States See United outset, At the April Sept. at 1 slip op. Cir. government’s posi- court summarized the 2005). Mr. Van- therefore vacated We appropriate tion as to the sentence: original sentence and remanded Dam’s ... all of claims Id. at 2. proceedings. additional VanDam this effort Mr. and all that reading you successfully getting Sentencing D. Second does not any remanded make difference. remand, honor parties chose to On fact, They still want 168 months. the agreement, without original plea they really think should be 188 felon-in-possession charge. months, they willing but are to live with government to resentencing, Prior gov The a memorandum. filed Right? that level— argued the offense ernment R., II, Tr. at 5. re- government Vol. The therefore, and, range the Guidelines — “That sponded, exactly position, our applica than found higher should be that added). yes.” (emphasis Id. sentencing. The during original ble Later, government upon elaborated possession contended that government position: triggered firearm still an enhancement money, had If the Court counted that 2Dl.l(b)(l), § since under Guidelines up end final offense we would with a generally inapplicable rule is exclusionary history of 33 and a criminal of four level govern sentencing proceedings. The to range of 188 to months. Dis- 235 argued also the district ment money, counting the final offense his during sentencing proceed the first erred range is down to 31 with a level level converting in Mr. Van- ing in not the cash The of 151 to 188. 168 is within time of his Octo possession Dam’s guideline range. ini- drug quantity. arrest 2001 into ber to the low end tially agreed recommend the district court to consider Asking part guideline range as cash, firearm and in this case. sentencing considerations to of 188 for Guidelines pushed However, opin- is of the government advocated months. The 235 appropriate guideline ion that range.” guideline end of for the “low low that 188 and the would be II, R., (emphasis Supp. Doc. Vol. that would be end of added). added). At the end of (emphasis Id. at 7-8 memoran- government’s sentencing its colloquy, government presented however, recognize, that the dis- dum did recommending line”: it was “still “bottom rejected this offense- previously trict court at this imposed sentence the 168 month be reality, calculation. Faced with this

level Id. at 9. resentence.” stressing applicable Guide- but months, government’s ultimate Following lines months, Mr. Van- that the district recommendation conceded curtilage the motel theory as rejected the located functioned 1. We district court’s room, supported was was valid the search which of Mr. VanDam’s car the search probable was cause. parking his car because the lot in which Dam addressed the personally district him in trouble in place.” the first Id. at personal court. He described his progress 14. The district court did not mention the sentencing. since In particular, his first government’s actual recommendation of that, Mr. VanDam noted due to the ab- analysis. 168 months in this Nor did the any disciplinary problems, sence of he was district court refer to a medium-security transferred from facili- obligation under the ty low-security facility; to a that he was recommend the low applicable end of the promoted prison job; in his and that he range. taking yoga Spanish classes. Mr. After announcing Mr. prison VanDam’s responsibility VanDam also took and ex- sentence, the district court considered his pressed past contrition for his offenses. request change one of the conditions of statements, After these release, supervised his which would re- court announced Mr. VanDam’s new sen- quire him to maintain employ- full-time tence. The rejected district court gov- ment. The district court conversed with calculation, ernment’s Guidelines conclud- Mr. VanDam about request, and ulti- offense level of 31 was mately granted it. During this conversa- “appropriate.” still yield- Id. at 14. This tion, agreed that it had no ed a range of 151 to 188 months. Unlike objection and otherwise remained silent. however, sentencing, the first the district court sentenced Mr. VanDam at the low Appeal E. Instant range, end of this to 151 months. It also 1, 2006, May On Mr. VanDam filed a credited Mr. VanDam for the 15 months timely appeal. notice of Mr. VanDam ar- that he spent pretrial had detention on (1) gues that: the government breached federal and charges, state based upon its plea agreement by not recommending belief that the U.S. Bureau of Prisons a sentence at the low end of the Guidelines would refuse to do so. that, range and remedy, as a he is entitled The district court rested its more lenient specific performance plea of the agree- sentence—its movement from the middle ment before the same sentencing judge; range the Guidelines to the low end of (2) and the district court by erred not the Guidelines range upon Mr. VanDam’s — applying the exclusionary rule at sentenc- strides towards rehabilitation. It ex- ing. plained that “Mr. VanDam doing re- markably prison well in and following the II. DISCUSSION actually rules and finding what he claims to be some new balance in hopeful- part life and The viable of Mr. appeal VanDam’s ly a disassociation from the use of alleged meth- relates to the breach of plea amphetamine and practices that got agreement.2 Resolving this appeal re- 2. Mr. exclusionary-rule VanDam raises the acknowledges inapplicability Ryan argument "only preserve it for consider- exception. Accordingly, because this Panel by ation by Supreme the full court and/or may not overrule decision of another Panel Aplt Court.” Br. at 27. Mr. VanDam con- absent en superven- banc reconsideration or a cedes that this Panel must adhere to United decision, ing Supreme Court see United States Ryan, Cir.2001), 236 F.3d 1268 Meyers, (10th Cir.2000), v. 200 which held that through evidence obtained an apply Ryan summarily we reject and Mr. Van- illegal may search and seizure be introduced Dam's contention that the district court erred sentencing, illegal- unless the evidence was applying not exclusionary rule at sen- ly gathered with the intent to secure an in- tencing. creased sentence. Id. at 1272. Mr. VanDam (1) government complied promise. we must with its three-step analysis: quires a government Rodriguez-Delma, See United States whether determine (10th Cir.2006) (con (2) so, if plea we agreement; breached cluding the breach can be after “consideration of the entire must determine (3) harmless; if the record” that did not breach and breach deemed — harmless, denied, agreement), cert. we must de- U.S. cannot be deemed —, 127 S.Ct. 167 L.Ed.2d 134 remedy VanDam should termine what Mr. (2007). receive. hold first

We language the unambiguous Under not rec breached case, in this a sentence at the low end of ommending obligated government was to recommend range that the district court the Guidelines guideline sentence “at the low end is, a applicable-that range of found to be II, R., applicable.” Supp. found Vol. that, hold ¶ then 151 to 181 months. We 48, 11(C), language Doc. at 4. did This York, v. New pursuant Santobello preclude from advo S.Ct. 30 L.Ed.2d 427 U.S. cating range. particular for a (1971), progeny, it is inappropriate and However, require did analysis. Final apply harmless-error recommend a sentence at the bottom of ly, that Mr. should re we hold VanDam ultimately specific performance ceive the applicable,” “found even if that dif sentencing judge. the same before proposed fered from Mr. range. Both the

A. Breach interpretation with this agree VanDam 13; Br. at agreement. Aplee. de This Court reviews novo Br. Aplt. at 18. question government has the agreement, even the breached when whole, gov- the record as a the Reading objection fails to this preserve defendant the At agreement. ernment breached Werner, United v. 317 below. See States point no in its written submissions or oral (10th Cir.2003). 1168, 1169 F.3d government the did recom- statements at the of the mend sentence bottom of contract principles General range, as ultimately-applicable Guidelines scope the law define content and i.e., 151 defined court — government’s under obligations Instead, the rec- government 188 months. See, agreement. e.g., United States v. at low end of ommended a sentence the (10th Guzman, 1191, 318 F.3d 1195 Cir. range applicable. This com- the it deemed 2003). express thus the lan We look to bination, action, respective- of inaction identify the guage in both ly, government’s promise undermined promise of the government’s the nature Mr. VanDam. United States reasonable and the defendant’s under (10th Cachucha, Cir. promise at the time standing of 2007) prosecutor breached (holding See, entry guilty e.g., plea. United plea-agreement promise “not to seek Corp., v. Rockwell Int’l 124 F.3d States upward vari- higher offense level an Cir.1997). (10th 1194, 1199 We construe ance”; disapproving appli- his statements ambiguities against government, all range cable Guidelines “undermine[d] See, it drafting party. the extent is the defendant). prosecutor’s promises” e.g., Brye, 146 F.3d United States v. Cir.1998). (10th memoran- We start with the We evaluate the rec document, government a whole to dum. In this ord as ascertain whether mately applicable”: “found “I guess stated that Mr. VanDam’s bottom line we are recommending 188 to 235 months. It still range should be imposed the 168 month sentence be at this a sentence at “the low then recommended added). R., (emphasis resentence.” Id. at 9 range.” guideline Supp. end of that added). II, (emphasis at 4 Doc. Vol. Put simply, neither the 188-month rec- sentencing memoran- The ommendation nor the 168-month recom- ultimately conceded the reasonable- dum mendation was at the bottom of the sentence that was below specific ness of a applicable” by “found the district court. believed to Yet, they were the recommendations is, 168 months. None- applicable be directly offered. Both —that theless, fixed 168-month recommenda- government’s obligations contravened the middle, end, not the tion was in the low plea agreement. under the the district court found to correctly points months). (i.e., 151 to 188 applicable out that the PSR informed the district sentencing hearing, govern- At the court of the government’s obligation to confirmed that Mr. again ment VanDam’s “recommend the defendant be sentenced months,” although sentence “should be 188 applicable guideline the low-end of the “willing it to live with 168 [months].” ¶ R., III, range.” govern Vol. 6 at 3. The R., II, Tr. 5. When did mention Vol. that, argues pursuant ment to United obligation its sentence-recommendation Smith, plea agreement, under the Cir.1998), the fulfilled duty PSR suggested did in a manner that so disagree. We in obligation longer was no effect: Smith, we held that “the term ‘rec- money, his final Discounting offense ommendation’ in a does is down to a level with a range level require prosecutor to allocute of 151 to 188. The 168 is within that specific adjustments favor of in the defen- guideline range. ini- dant’s sentence if the recommendations tially agreed to recommend the low end are prosecu- contained the PSR and the guideline range part as against tor does not allocute an agreed- sentencing considerations in this case. upon adjustment.” Ap- 140 F.3d at 1327. However, government opin- the is of the plying interpretation, this we concluded appropriate guideline range ion that the government the did not breach its would be that 188 to and the low obligation to recommend various sentenc- end of that would be 188. adjustments ing though even it never added). argument any adjust- made an fact, (emphasis Id. at 7 these' sentencing ments at the proceeding. Id. suggested that government comments the at sentencing 1327. We observed that the obligated felt to recommend a sen- court government’s was aware- of the preferred tence at the low end of its promises, which were memorialized in the range. government The fur- Guidelines PSR; they judge “were noted the ther this belief its last re- projected And, the sentencing hearing.” impor- Id. the district court on the marks to sentenc- tantly, government act of the before “[n]o ing government expressed issue. at sentencing contrary could be read as accept willingness to the district court’s position they agreed support.” to the to sentence, original which was below the Id. at 1327-28. range govern- Guidelines favored the However, the ment but months above low end of the circumstances identified in range permit the Guidelines the district court ulti- Smith that the recitals of a would though alone, quantity, sentencing judge even ac- PSR, satisfy governmental knowledged sentencing recommendation rec- particular sentence to make promise was to make at government obligated present in this case. are not ommendation earlier).3 hearing Rule 11 six months Smith, gov- the transpired in what Unlike just case remain in this did ernment Finally, the government argues Instead, sentencing hearing. the silent at that, even if it needed make additional contrary for a it advocated sentence recommending comments the low end of Further- recommendation. agreed-upon ultimately-applicable range, Guidelines Smith, more, sentencing court unlike opportunity no it had to do so because at the acknowledged never in this case court identified and then district gov- swiftly pronounced Mr. sen PSR’s references to the VanDam’s hearing the reject this type tence. We of rationaliza plea-agreement recommenda- ernment’s government many opportu tion. The had Accordingly, the mere recital tions. PSR’s comply with nities to plea-agreement obli- government’s made It could have the district court in way case relieved the gations in this no obligation of its the sentenc prior aware responsibility for honor- perhaps ing hearing, through govern its actions. obligations through those During ment’s memorandum. notes, however, sentencing-hearing colloquy, gov gov acknowledged unambiguously have in ernment could obligations ernment’s that, although the district court formed original change-of-plea at the range, a certain it nonetheless wanted However, in December hearing, recommending the low end whatever sentencing took more than place second appro the district court found to be change-of- years Indeed, three after could priate. also unlikely, agreement by It plea hearing. respectful therefore is have honored its least, ly getting the district court’s attention say resentencing Mr. requisite interjecting recommendation its pri the district court recalled VanDam immediately after the court identi district concerning or statement range but applicable fied the obligations. See United plea-agreement pronouncement to the oral prior (1st Riggs, 223-25 steps was taken.4 sentence. None these Cir.2002) (holding whole, to rec plea agreement by failing upon breached Based the record as a sen- specific drug never recommended upon ommend sentence based use position ing process tem- court could We take no on whether close district hearing. resentencing Ac- proximity colloquy, poral between a Rule 11 government gov- cordingly, the was well situated during a the which district court recites (as before) hearing to craft at the well as obli- ernment’s sentence-recommendation possibil- arguments that took the sentencing hearing enough, into account gations, and a is more, applicable ity court would to be satisfy government's find to the without range. lower-than-preferred Guidelines duty a recommend a a to sure, particular sentence. during government the insisted To be argument that failure to Mr. VanDam's oral argument arguments higher sentenc- object to its for a 4. lack-of-time is belied further The resentencing ing range in connection by employed fact that the court with the the district range range effectively the at made 188- to 235-month the 151- to 188-month Guidelines Thus, resentencing sentencing hearing. operative baseline the original as it the the —a deviat- during govern- which the court argument, oral the baseline from district admitted hearing. We only very throughout at the end of the ment was on notice the resentenc- ed applicable a analysis at the low end of the did not harmless to apply tence error prosecutorial agree- breach of a plea range, as found the district Guidelines ment, inapposite because Mr. VanDam Rather, government the consistent- court. only re-sentencing “seeks and expressly sentences either below or ly recommended position plea disavows the that should his it range thought at the low end Aplee. be Br. at vacated.” apply. The therefore should agreement. only that breached the We believe Santobello is not

relevant, dispositive: also it precludes but Santobello, review. In the harmless-error B. Harmlessness Supreme Court necessarily answered two (1) government argues that even sequential questions: the antecedent place, question required if a breach took the itself of whether relief is for a breach (2) a plea agreement; breach of the was harmless because the court district question subsequent of what to conformity a sentence in imposed with provide. 262-63, See 404 U.S. at 92 S.Ct. the have what recom sentence at end of the mended —a the low range. support posi

Guidelines To Court Supreme answered the first tion, claims that Su question affirmative, in at least with Santobello, preme holding Court’s in which respect to material breach.5 id. at 1990). unpersuaded. Irrespective apply are did We not re- harmless-error Instead, objected sentencing argu- Mr. VanDam ments, to Easterling. its view in we scrutinized evidenced, plea-agreement record, had a unique factual which obligation alia, to make district clear to the court approval inter district court's that recommended the low of whatever end request agree- defendant’s to enforce a range the district court found to be spoke cooperation to ment that his with law applicable; to failed do so. enforcement. Id. We then determined Furthermore, given that the court district had "any failing breach Government” rejected specifically the 188- to 235-month timely cooperation submit memorandum to govern- at sentencing, court only the district that would have further operating truly would have ment been in a upon the elaborated defendant’s law enforce- Panglossian fashion if it believe chose to cooperation was "immaterial.” Id. ment otherwise) arguments (unopposed had vein, In similar some have ad- courts power reimpose higher range as through might dressed such situations what Indeed, resentencing quo. status the dis- called "technical violation” doctrine. apparently trict held obverse' view This doctrine holds that "mi- "technical” or operative sentencing regarding the baseline. (i.e., plea agreements nor” violations de words, strongly suggests In other the record breaches) require remedy, minimis do not court viewed 151- to 188- prejudice absent evidence actual a sen- quo, month to be the status from which Amico, tencing hearing. See United States v. higher it declined to deviate to reach (2d Cir.2005); 416 F.3d 167-68 United government urged upon it. Clark, (1st 14 n. 3 Cir. going The district court stated: "So I’m 1995). The rationale behind this doctrine is level, change respect the offense due with all agree- material breaches of a II, R., you [prosecutor],...” Vol. Tr. case, ment, in this as cause a defendant’s added). sum, (emphasis government's expectations go reasonable contractual un- argument lack-of-time merit. is without Vaval, fulfilled. See United States v. (2d provides Cir.2005). guidance 5. Santobello express express no as At least terms, effect to the of non-material In previously breaches. one we have not endorsed the instance, “find[ing] after the breach violation [that] technical doctrine. Under the facts material,” case, the Government we plea- was not held of which involves a material breach, that no agreement relief was warranted. v. United States we have no to do occasion 1073, Easterling, 921 F.2d Cir. so. of a without forcement that breach (noting 262, 92 S.Ct. a “immaterial”). tangible resulting a harm from prin- showing two It identified not breach.”). remand, re- automatic require ciples of

gardless instance, justice” “interests of For in- agreement plea of the breach material minimum, princi at a implicates, rationale (1) pro- sentencing judge: fluenced Clearly, is of fundamental fairness. ples (2) justice”; and “interests moting the re permit prosecutor a inequitable the prosecution “the duties of recognizing that induced on the consideration a. nege Id. promises.” [guilty-plea] in relation constitution important to waive defendant concluded essence, Court Supreme inequity getting This guarantees. al —not interests, of these gravity due to bargain of the the benefit constitutional sentencing particular transcend which (i.e., and the government action/inaction case, judicia- particular in a outcome sentencing influence the potential Id. “relief.” provide some ry must agreement, includ judge)—invalidates This determination 263, 92 S.Ct. voluntary knowing waiver. ing the and remedy type of upon the way hinged no 509, Johnson, Mabry v. 467 U.S. See (e.g., specific requested the defendant (1984) (“It 2543, 81 L.Ed.2d 437 104 S.Ct. resentencing plea- or at a performance breaches prosecution that when follows vacatur). agreement to an respect with executed promise re “relief’ was announcing that After pleads defendant agreement, plea then identified Court Supreme quired, and hence his premise, on a false guilty lesser available remedies —the stand.”). cannot conviction greater performance specific is entitled to A defendant therefore plea. the guilty remedy of withdrawal meaningfulness remedy that restores the the sentenc gave Supreme Court Id. Santobello, 404 U.S. at bargain, of his see to choose between the discretion ing court (noting that 92 S.Ct. 495 upon “the circum based options, two these integrity maintain “must be fulfilled” to 92 S.Ct. of this case.” Id. stances convinces appellate if an even plea), Moreover, that resentenc stating doubt beyond reasonable itself chosen, take before place if “should” ing, impose the same sen- judge would trial recog Court Supreme judge, different Colleran, Dunn v. remand. tence on of insti the appearance the need for nized (3d Cir.2001) (“Espe- 461-62 Id. tutional fairness. promise is not prosecutor’s cially when analysis violates the A harmless-error court, does the defendant binding on the automatic- Santobello’s behind principles but for specific sentence bargain for not Due to the institutional rule. remand do can and what the prosecutor a lock on govern principles, of these nature sentencing. That say at agree of a material breach ment’s prosecutor’s lead court does follow simply harmless rendered cannot be ment irrelevant.”). is remedy of a defendant seeks because for the justification second Santobello’s vacatur resentencing, rather than “appropriate automatic —remand States Va rule — agreement. See United prosecu- of the duties recognition Cir.2005) (“[I]n (2d val, vigorously more tion”—militates even integrity preserve order pros- A analysis. a harmless-error against confi public and procedures bargaining plea agree- aof material breach ecutor’s justice system, a in the criminal dence efficacy, probity, undermines the en- ment to the generally entitled defendant 1204 justice system. It

of the criminal also We have at adopted, implicitly, least this in public legitimacy reading erodes confidence of holding Santobello —as system. of this considerations of integrity fairness and the judicial system

of the any render harmful finding A of harmlessness—-that breach, regardless remedy material of the particular the breach had no effect on a requested. Hawley, See United States v. sentencing court—fails to cure these struc (10th Cir.1996) (hold 682, 93 F.3d 693-94 It nothing tural wounds. does to make the necessarily that defendant is entitled system words, In other whole. the neces to relief from material breach of sity integrity preserving of of the crim agreement “regardless gov of whether the justice process, inal and the faith public’s actually ernment’s conduct affected the in integrity, requires any correction of sentencing judge”). reading This also has breach, governmental regardless material expressly been embraced virtually ev sentencing impact of that breach on ery circuit question that has addressed the particular defendant and the form of the apply of whether to harmless error. See remedy.. ultimate See United States v. Vaval, 154-56; 404 at F.3d Mondragon, (9th 978, Mondragon, 228 F.3d 981 Cir. 981; Askew, 228 F.3d at United v. States 2000) (“The error harmless rule does not 236187, 14, 1999 *2 April WL Cir. apply when the breaches a 1999) (unpublished); United v. States integrity judi of our (1st Clark, 55, Cir.1995); F.3d 14 United system requires cial Martin, (3d States 788 F.2d strictly comply obligations with its under a Cir.1986); see also Correale v. United plea agreement.” (emphasis added and ci States, (1st Cir.1973). omitted)). tations Williams, But United States v. cf. (8th Cir.1981) (noting Santo nothing sug- There is Santobello to requiring bello rule finding relief but gest that a material breach can be ren- breach harmless because district court “ef dered harmless. The Court never once fectively granted specific performance of intimated certain situations relief plea agreement” through pro Rule 35 may not be’appropriate. sug- Nor did it ceeding). that, gest if remedy specific per- remand, formance was chosen on the un- Animating a recognition these cases is derlying might breach be transformed finding into that a impossi- harmlessness is fact, an innocuous one. Santobello ble because harm the institutional caused question addressed the nature of the a prosecutor’s material breach tran- remedy impact because the any the breach prejudice single scends that a defen- itself could not be deemed might harmless.6 dant particular suffer from a sen- government’s proposed approach 6. The that a defendant chooses. It evaluates not the —de but, rather, effect of the harm the effective- termining apply whether to harmless-error re is, remedy; ness of the desired its effec- identifying view to a material breach after obtaining objective tiveness in an that in fact rectify government's error— guaranteed through cannot be bar- ignores independent impact (i.ea gaining sentence). process lesser Con- concurring breach. dissenting opin and overlooks, sequently, methodology and reasoning failing. ion's suffers from the same uncorrected, potential carries the to leave J., (Lucero, Op. See C & D , integrity harm to the and to the concurring dissenting). This methodolo justice system criminal as a whole. This is gy incorrectly hinges availability of harm very result that Santobello’s automatic- upon particular remedy less-error review sought remand rule to avoid.

1205 rule. Vaval, automatic-remand See, 404 tion to Santobello’s e.g., tencing outcome. Dunn, 247 F.3d 154-55; prosecutorial a Specifically, see also at at Id. F.3d inappli (describing rationale at 461-62 can be harm- plea agreement a breach of review). inAs harmless-error cability of remedy of a seeks the less when defendant Santobello, a conclu courts reached these legally impossible resentencing and is of harmlessness to the impossibility sion as upon remand sentencing outcome for the question of addressing prior excep- Applying Id. to be different. Vaval, F.3d remedy. 404 appropriate tion, that the breach we held Martin, 14-15; Clark, 156; at 55 F.3d a recom- duty not to sentence of its make Correale, 187; 479 F.2d at 949.. F.2d at 788 was harmless because mendation .de- many of these decisions Significantly, only remedy specific of sought fendant analysis inappro a found harmless-error sen- and because the performance ultimately though the courts even priate, lowest sentence authorized tence perform remedy specific of ordered applica- stressed by law. Id. We (order Vaval, at 156 404 F.3d ance. See con- review was bility of harmless-error Mondragon, specific performance); very present- limited context fined to “the Clark, (same); F.3d at 981 228 [tjhere.” Id. ed Correale, 479 F.2d at 949-50 (same); 15 (same). performance ordering specific In auto- exception Belt Santobello’s virtually courts these resentencing, at a legal rule is therefore a matic-remand necessarily accepted the every instance facts, these Belt does not anomaly. On upon remand sentence that the possibility of harmless- appropriateness speak to the question, the same.7 Without would be Although Mr. VanDam review. error equal force to with logic applies their a lower remedy resentencing, seeks harm breach material is appeal: instant a terms, By its legally possible. sentence is level, regardless ful on a institutional then, inapposite. isBelt defendant, who seeks resentenc- a out, correctly points As the ab the same sentence ing, would receive See, Clark, F.3d state in Belt e.g., expressly breach. we did not sent the (“That not district court did there “are the present at 14 circumstances sen government’s-breaching consider the a breach of in which the circumstances is irrelevant memorandum tencing harmless.” may be found Clark entitled question of whether profound at 21. Given Aplee. Br. remedy.”). the hold- institutional concerns animating Santobello, however,- are hard we ing of in United States decision Our any other circum- conceive pressed to (10th Cir.1996), Belt, does justify application would stances that Belt, government’s' cause. advance the review. excep- harmless-error legal-impossibility out carved we , sentence if the sure, likely the same to receive more decisions did not involve 7. To be these However, has Santobello to his re judge a defendant —due is the same. where situation up being in front out quest might identity sentenced end an made clear that — un judge. is a somewhat That question of the same of whether to the irrelevant comes is Santobello, as material, Under usual circumstance. prosecuto- appropriate for relief is infra, typical is to course And, further a breach of discussed rial judge, to a when remand different s text, supported by holding is discussed in Cachucha, See, resentencing. e.g., will be strong very institutional concerns. may be Arguably, a defendant F.3d at 1271. government’s . summary, proposed We also conclude on these facts that it analysis appropriate permit contradicts Santo- is Mr. VanDam to harmless-error be that sentenced before the same policy judge, concerns animat- de and the bello spite general rule that resentencing rule. Because automatic-remand ed its place should take in front aof different material breach was nec- Santobello, 263, judge.8 See 404 U.S. at harmful, we must now determine essarily 495; Cachucha, 92 S.Ct. 484 F.3d at 1271. remedy. appropriate prohibit Santobello did not same-judge re- sentencing in all instances. Santobel Cf. Remedy C. lo, 263, 404 92 (noting U.S. S.Ct. 495 not seek to vacate Mr. does his VanDam “petitioner by be resentenced Instead, requests he guilty plea. added)). judge” a different (emphasis required prom- to fulfill its And, be instance, by in this resentencing sentencing judge. in of the same ise front judge way same will in no threaten the in principles that motivated Santo

stitutional Although remedy the choice of judicial bello’s call reassignment, par for rather rests the court than the defen with ticularly because it is the defendant —the Hadden, dant, 1529, Allen v. 57 F.3d see individual victim of the breach —who is re (10th Cir.1995), 1534 we are inclined to Indeed, questing remedy. Mr. Van- grant Mr. VanDam relief he re representation Dam’s that “the quests. Resentencing typical is the reme judge can fair” eliminates even the dy breach of a for the appearance of inequity. Aplt. Br. at 26. E.g., Brye, 146 F.3d at 1213 (describing Finally, we note that the has noting two available remedies and challenged same-judge component may only guilty defendant withdraw requested of Mr. VanDam’s remedy. “particularly egregious when breach is III. CONCLUSION intentional”); Camper, see United States v. (9th Cir.1995). 229, When, 66 232 reasons, F.3d as preceding For the we VACATE case, in this the defendant does not seek to Mr. VanDam’s sentence and REMAND guilty plea, withdraw his the less drastic for resentencing before the same sentenc- resentencing appears of to be ing judge. During the course of the resen- Cachucha, apt. most See 484 F.3d at 1271. tencing proceeding, must Cir.1992) way position (defendant 8. We in no endorse the by "must be sentenced judge remand the same judge” is the usual reme- "specific performance different if is dy. for”); Yesil, of District Columbia Circuit has called United States v. 991 F.2d See, 1527, (11th adopted e.g., Cir.1992) this view. United States v. 1533 n. 7 (following 84, Wolff, (D.C.Cir.1997); "practice 127 F.3d 88 remanding see of a different sentenc- Bowler, 851, also United States v. judge following 585 F.2d the breach of a (7th Cir.1978) (finding 856 agreement”); of McCray, facts case United States v. 849 judicial reassignment (8th unnecessary). Cir.1988) curiam) (per is F.2d 306 However, (defendant approach by minority is far the by is "entitled” to be resentenced Rivera, approach. See United States v. judge); Brody, 357 a different United States v. 808 (3d Cir.2004) (if (2d Cir.1986) specific per- F.3d 297 F.2d (requiring judi- 948 Circuit, remedy, formance is sufficient reassignment). defendant cial Even the Ninth judge); must be resentenced previously different which minority subscribed to the Clark, (same); approach, 55 F.3d at 14 United recognized recently States v. has more (4th Cir.1994) Regiera, (judi- controlling prescription nature of Santobello's reassignment "required”); cial is judicial reassignment. United Mondragon, 981; Goldfaden, F.2d Camper, 66 F.3d at 232. appropriate recog- justice terests rec- obligation to perform specifically of the prosecution the duties at the nition of imprisonment terma ommend negoti- in the made promises relation to range that the low end guilty will be best pleas ation of applicable. to be court finds district remanding the case to the served concurring in LUCERO, Judge, Circuit further consideration. state courts part. dissenting part and petitioner relief to which The ultimate the to the we leave discretion II.B, II.C, entitled III of and but Parts join I all court, position in a which is better state occa- the rare opinion. On majority the whether the circumstances to decide does not a seek in which defendant sions spe- be only that there require this case only requests plea, but guilty vacate his on agreement performance cific plea agree- specific performance petitioner case in which plea, error harmless ment, I conduct would judge, a by different be resentenced analysis. court, whether, state in the view of the majority’s conclusion disagree with I require granting the circumstances York, 404 U.S. Newv. that Santobello i.e., op- sought by petitioner, relief 30 L.Ed.2d 262-63, 92 S.Ct. plea guilty. his to withdraw portunity this case. (1971), outcome controls the in no sense to that this is We emphasize a recognized previously has This Circuit fairness of the question plea-agree- in which limited context” “very prose- rests on the the fault here judge; er- subject to harmless are ment breaches .cutor, judge. the sentencing not on complained-of ef- “the analysis: when ror 262-63, 92 S.Ct. breach cannot 404 U.S. at fect of the resentencing.” United States remedied relatively it has passage, As I read Cir.1996). Belt, of harmless propriety little to do with applica- is not exception Although the Belt con- primarily instead analysis; error rule here, a strict forecloses that case ble decision- identity of remedial cerns review whenever harmless error barring Indeed, question preeminent maker. plea agree- a breaches a whether who decides was the case limited a second I would create ment. plea withdraw from may defendant of this circumstances under the exception breach. following agreement case. (“We granted 257-58, 92 S.Ct. 495 Id. wheth- the remand Santobello case to determine in this purpose certiorari (cid:127) keep a commit- court to determine failure to the state was to allow er the State’s agreement or recommen- the sentence voiding concerning ment whether required a new resentencing appropriate. would be guilty simple dation on Marshall, analysis trial.”). joined by is as Jus- of the Court’s The full text Justice Stewart, argued follows:. Brennan tices Id. should decide. himself the defendant question not We need reach (Marshall, J., dis- 268-69, 92 S.Ct. or would not sentencing judge would al- have justices would senting). Those all had he known have been influenced to void a to choose lowed defendants negotiations the details of govern- breached when prosecutor’s plea. He stated in the Douglas concurred him ment. Justice did not influence recommendation separately but wrote majority opinion, that. no reason doubt and we have ought to accord “a court in- counsel Nevertheless, conclude we preference considerable, case, defendant’s if present in this I would conduct harm- controlling, weight.” Id. at 92 S.Ct. less error review. J.,

495 (Douglas, concurring). A majority

of the Court concluded state court “in position” better make that

determination. Id. at S.Ct.

Although the Santobello Court does not

explicitly state harmless error analy

sis is to breach-of-plea-agree inapplicable cases, In re KESTER; Donald majority ment Kenton contends that Kester, Charlotte Yvonne necessarily the Court decided that Santo bello Debtors. was entitled to some relief before addressing type what of relief would be Christopher Redmond, J. appropriate. disagree. I The Court first Trustee, Appellant, concluded the state tribunal was the appropriate body to decide whether San v. tobello permitted to withdraw .be Kester; Donald Kenton Charlotte guilty plea. his Having no “supervisory Kester, Appellees. Yvonne

jurisdiction” over state decision, would make the withdrawal id. Kester; re Donald Kenton Charlotte J., (Douglas, 92 S.Ct. 495 concur Kester, Yvonne Debtors. ring) omitted), (quotation the Court sim Christopher Redmond, J. ply judgment below, vacated the id. at Trustee, Appellant, 268, 92 S.Ct. 495. Once that judgment vacated, resentencing (along with spe performance cific of the plea agreement) Kester; Donald Kenton Charlotte would necessary if the state denied Kester, Yvonne Appellees. opportunity Santobello the to void his plea. 06-3114, Nos. Although Santobello 06-3116. would receive some form of relief from the state court United States Court of Appeals, route, under either that result was not Tenth Circuit. based on the Court’s aversion to harmless review, error happenstance but the pro July 10, 2007. posture. cedural

I majority’s share the concern over the

appearance of institutional integrity, and countervailing

those interests make this a

difficult issue. analysis Harmless error abuse;

rife with the potential my as

respected colleague recently noted, we

must building avoid “an ever-increasing

floor practice unlawful [an] rather

than placing ceiling upon it.” United Nash,

Cir.2007) J., (McKay, dissenting). Never-

theless, under the unique circumstances

Case Details

Case Name: United States v. VanDam

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 10, 2007

Citation: 493 F.3d 1194

Docket Number: 06-4104

Court Abbreviation: 10th Cir.