UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-10238

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOE PAUL GALINDO,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas (5:96-CR-61-C-1) February 23, 1998

Before POLITZ, Chief Judge, HIGGINBOTHAM and DEMOSS, Circuit Judges.

DEMOSS, Circuit Judge:*

A federal grand jury indicted Joe Paul Galindo on counts of

conspiracy, possession of a firearm with an obliterated serial

number, possession of cocaine with intent to distribute, and money

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. laundering. In a written plea agreement, Galindo agreed to plead

guilty to all charges except conspiracy in exchange for dismissal

of the conspiracy charge and the prosecution’s agreement to request

a sentence reduction for acceptance of responsibility. The

presentence report subsequently prepared for Galindo recommended an

upward adjustment for obstruction of justice. It further

recommended against a downward adjustment for acceptance of

responsibility because the commentary to the United States

Sentencing Guidelines advises that such a reduction is ordinarily

inconsistent with an increase for obstruction of justice. The

prosecution endorsed the presentence report and thereby failed to

request a reduction in Galindo’s sentence. As a result of this

alleged breach of the plea agreement, Galindo moved to retract his

guilty plea. The district court denied Galindo’s motion, and

instead sought to remedy the situation by allowing the government

to withdraw its earlier adoption of the presentence report. The

court then sentenced Galindo, allowing a two-level reduction for

acceptance of responsibility and imposing a sentence of

imprisonment at the high end of the range prescribed by the

guidelines. Galindo appealed the sentence. We vacate the sentence

imposed by the district court and remand with instructions.

This Court reviews de novo a defendant’s claim that his plea

agreement was breached. See United States v. Laday,

(5th Cir. 1995). A plea agreement has been breached if the

-2- conduct of the prosecutors is inconsistent with the defendant’s

reasonable understanding of the plea agreement. See United States

v. Valencia,

(5th Cir. 1993). In light of the

government’s ready endorsement of a presentence report which

embodied recommendations inconsistent with the government’s promise

to recommend adjustment for acceptance of responsibility, it is

plain that there was indeed a breach of the plea agreement.

The government’s agreement that the acceptance-of-

responsibility adjustment should apply was part of the inducement

for Galindo to plead guilty, and it must therefore be fulfilled.

See Santobello v. New York,

(1971). Once the

government breached the plea agreement, the district court had

limited options. The two possible remedies available to remedy the

breach of a plea agreement are: (1) specific performance of the

agreement, accomplished by resentencing before another judge; or

(2) allowing the defendant to withdraw the guilty plea. See

. The course taken by the district court did not remedy the

breach, and the aftermath is not susceptible to harmless-error

analysis. See Valencia,

.

Because the district court failed to provide Galindo either of

the two permissible remedies for the government’s breach of the

plea agreement, we vacate Galindo’s sentence and remand the case

for further proceedings. The district court is instructed that,

consistent with Santobello, it shall either transfer this case to

g:\opin\97-10238.opn another judge for resentencing or permit Galindo to withdraw his

guilty plea.

VACATED and REMANDED WITH INSTRUCTIONS.

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