United States of America v. Jemuel Luciano

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEMUEL LUCIANO,
Defendant-Appellant.
No. 18-10238
D.C. No. 1:15-cr-00068-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Jemuel Luciano appeals from the district court’s judgment and challenges
the 6-month sentence imposed following his guilty-plea conviction for making a
false statement, in violation of 18 U.S.C. § 1001(a)(3). Luciano contends that the
government breached its obligation to recommend a sentence below the otherwise-
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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applicable Guideline range. We have jurisdiction under 28 U.S.C. § 1291, and we
vacate Luciano’s sentence and remand for resentencing.
Luciano did not object below to the government’s sentencing
recommendation, so we review for plain error his claim that the government
breached the plea agreement. See United States v. Whitney, 673 F.3d 965, 970 (9th
Cir. 2012). Under the plain language of the plea agreement, if the government
determined that Luciano had provided substantial assistance, it was obligated to
move the court, pursuant to U.S.S.G. § 5K1.1, “to impose a sentence below the
otherwise-applicable” Guidelines range of 6-12 months. Although it filed a section
5K1.1 motion asserting that Luciano had provided substantial assistance, the
government recommended a 6-month sentence that was within, rather than below,
the “otherwise applicable” Guidelines range. This recommendation was a breach
of the government’s obligation under the plea agreement. See United States v.
Alcala-Sanchez, 666 F.3d 571, 575-76 (9th Cir. 2012). Under the circumstances of
this case, the government’s breach necessitates remand. See Whitney, 673 F.3d at
973-74.
Given the government’s breach, we vacate Luciano’s sentence in order to
give him the benefit of his bargain, namely specific performance of the plea
agreement. See Alcala-Sanchez, 666 F.3d at 577. As we are required to do, we
“remand for resentencing before a different district judge to eliminate impact of the

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government’s prior . . . breach.” Id.; see also Santobello v. New York, 404 U.S.
257, 263 (1971). We “intend no criticism of the district judge by this action, and
none should be inferred.” United States v. Johnson, 187 F.3d 1129, 1136 n.7 (9th
Cir. 1999)
In light of the foregoing, we do not reach Luciano’s remaining argument.
VACATED and REMANDED for resentencing before a different judge.

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