United States of America v. Jesus Perez-Laguna, a/k/a Manuel

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4757
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS PEREZ-LAGUNA, a/k/a Manuel,
Defendant - Appellant.
No. 08-4758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS PEREZ-LAGUNA, a/k/a Manuel,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr.,
District Judge. (3:07-cr-00468-JFA-1; 3:07-cr-01162-JFA-1)
Submitted: October 22, 2009 Decided: December 16, 2009
Before NIEMEYER, KING, and AGEE, Circuit Judges.

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Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Robert Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Mark C. Moore, Assistant United States Attorney,
Columbia, South Carolina; Loretta King, Acting Assistant
Attorney General, Dennis J. Dimsey, Conor B. Dugan, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a guilty plea, Jesus Perez-Laguna was
convicted of conspiracy to commit an offense against the United
States, sex-trafficking a minor for private financial gain,
interstate transport of a minor with intent to engage in
prostitution, importing and harboring an alien for the purpose
of prostitution, and recruiting a minor to engage in a
commercial sex act, in violation of 18 U.S.C.A. §§ 2, 371, 1591,
1594(a), 2423(a) (West 2000 & Supp. 2009), and 8 U.S.C.A. § 1328
(2006). The district court sentenced Laguna to 170 months’
imprisonment.
Perez-Laguna’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that no
meritorious issues for appeal exist, but questioning whether the
Government breached the plea agreement. Perez-Laguna asserted
in his pro se supplemental brief that the Government and the
U.S. Probation Office breached his plea agreement and the
district court incorrectly determined his offense level when
calculating his Sentencing Guidelines range. He asks for a new
sentencing hearing. We previously denied the Government’s
motion to dismiss and now consider the merits of the appeal.
The government breaches a plea agreement if a promise
that induced the plea goes unfulfilled. Santobello v. New York,
404 U.S. 257, 262 (1971). A criminal defendant who asserts the
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government breached a plea agreement bears the burden of proving
such a breach by a preponderance of the evidence. United
States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).
This court reviews the interpretation of plea
agreements de novo. United States v. Jordan, 509 F.3d 191, 195
(4th Cir. 2007). Interpretation of plea agreements is guided by
contract law “to ensure that each party receives the benefit of
the bargain.” Id. Due to the constitutional implications of a
guilty plea, this court holds “‘the Government to a greater
degree of responsibility than the defendant . . . for
imprecisions or ambiguities in plea agreements.’” Id. at 196
(quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir.
1986)). In other words, courts should interpret ambiguities in
the agreement in the defendant’s favor. Harvey, 791 F.2d at
303. Courts should apply the plain language of the agreement
and “‘not write the contracts of the parties retroactively.’”
Jordan, 509 F.3d at 195 (quoting United States v. Race, 632 F.2d
1114, 1119 (4th Cir. 1980)).
Perez-Laguna argues here, as he did below, that the
disputed provision of the plea agreement unambiguously requires
the Government to move for an additional third level of
reduction if he qualified for the two-level reduction in U.S.
Sentencing Guidelines Manual § 3E1.1(a) (2006). When the
district court applied the decrease under § 3E1.1(a), it
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necessarily found that Perez-Laguna qualified for that decrease,
triggering the Government’s duty to move for the additional
decrease permitted by § 3E1.1(b). The Government argues that
the plea agreement required it to move for a third level of
reduction only if Perez-Laguna “readily” demonstrated acceptance
of responsibility, and that one can interpret the contract
another way only by taking its terms out of context. The
Government asserts that Perez-Laguna did not qualify for any
decrease under § 3E1.1(a) because he did not “readily
demonstrate[] acceptance of responsibility for his offenses,”
but the Government nonetheless “refrained from arguing against
the two-level reduction out of generosity.” The Government’s
argument is thus grounded in the difference in terminology
between the plea agreement’s requirement that Perez-Laguna
“readily” demonstrate acceptance of responsibility and the
Guidelines’ standard that the district court may reduce a
defendant’s offense level if he “clearly” demonstrates such
acceptance. See USSG § 3E1.1.
The Government’s argument confirms that the disputed
provision is, at best, ambiguous. The parties’ statements
during the sentencing hearing indicate that they had conflicting
understandings of the provision. Under the plea bargaining
principles stated above, the provision must be construed in the
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defendant’s favor.* Thus, we conclude the Government breached
the plea agreement when it failed to move for a third level of
reduction for acceptance of responsibility. See United
States v. Cachucha, 484 F.3d 1266, 1270 (10th Cir. 2007)
(holding that the government breached the agreement to recommend
a certain Guidelines range apply when it argued that the
applicable range was “way too low”); Dunn v. Colleran, 247 F.3d
450, 459-64 (3d Cir. 2001) (finding the government breached plea
agreement by requesting a “lengthy” and “considerable” term of
incarceration rather than a sentence between three and five
years as agreed, even though the defendant refused to accept
responsibility for his actions); United States v. Goings, 200
F.3d 539, 544 (8th Cir. 2000) (holding the government breached
the plea agreement by not affirmatively recommending a downward
adjustment for acceptance of responsibility).
Where the government breaches its plea agreement
obligations regarding sentencing, the remedy may be either
specific performance of the agreement or the opportunity for the
defendant to withdraw the guilty plea. Santobello, 404 U.S. at
* “This does not mean that in a proper case it might not be
possible to establish by extrinsic evidence that the parties to
an ambiguously worded plea agreement actually had agreed--or
mutually manifested their assent to--an interpretation as urged
by the Government.” United States v. Harvey, 791 F.2d 294, 303
(4th Cir. 1986).
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263. When remand for resentencing is appropriate, a different
judge should ordinarily be assigned. Id. (emphasizing “that
this is in no sense to question the fairness of the sentencing
judge”).
Perez-Laguna argues in his pro se brief that the
district court and U.S. Probation Office breached his plea
agreement by applying USSG § 2A3.1 to determine his offense
level, the Government breached the plea agreement by not
objecting to the presentence report’s application of USSG
§ 2A3.1, and the district court incorrectly applied USSG § 2A3.1
to determine his offense level. We have reviewed the record and
find these contentions lacking in merit.
Perez-Laguna has not sought to withdraw his plea and
requests remand of his case for resentencing. Accordingly, we
affirm the convictions, vacate the sentence, and remand for
resentencing before a different judge. In accordance with
Anders, we have reviewed the record in this case and have found
no other meritorious issues for appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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