F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 18 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 02-3224
                                                          (D. Kan.)
 FRANK ALVAREZ,                                (D.Ct. No. 01-CR-20099-JWL)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Frank Alvarez appeals the non-custodial portions of a sentence imposed for

attempted distribution of cocaine, claiming the Government failed to fulfill its


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
obligations in his plea agreement. Originally, the Government contended we

lacked jurisdiction to hear this appeal. In later briefing, it admitted the appeal

was properly taken and confessed error. The Government admits it failed in its

promise to Alvarez and joins him in his request for remand. Accepting that the

Government erred as it confesses, we vacate the non-custodial portion of

Alvarez’s sentence and remand for resentencing.

      Indicted on five counts of drug-related charges, Alvarez pled guilty to one

count of attempting to distribute approximately five kilograms of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and waived his right to

appeal from the sentence imposed. In exchange for his plea of guilty, the

Government agreed it would dismiss the remaining charges, recommend

sentencing at the low end of the Guidelines, and inform the court of the nature

and extent of Alvarez’s cooperation prior to sentencing.

      Although the Government indicated at the plea hearing that Alvarez was in

the process of cooperating, it failed to further inform the district court of his

cooperation either in the presentence report or argument to the judge at

sentencing. Lacking this information, the district court imposed, inter alia, a

sentence at the low end of the Guideline range: ninety-seven months

imprisonment followed by four years supervised release. It also denied Alvarez

federal benefits for a period of five years. 21 U.S.C. § 862(a).


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      We have jurisdiction to review our jurisdiction. United States v. Rubio,

, 711 (10th Cir. 2000). In this case, jurisdiction exists under 28

U.S.C. § 1291, despite Alvarez’s waiver of appeal, because the Government

admits it violated the plea agreement. United States v. Guzman, 

,

1195 (10th Cir. 2003).

      The parties agree the Government was obliged to inform the court not only

of the fact of Alvarez’s cooperation, but its essential character and scope as well.

They also agree that, while an inadvertent mistake, the Government’s omission

prejudiced Alvarez, at least to the degree that the evidence may have prevented

the restriction of federal benefits. 21 U.S.C. § 862(e) (penalties shall not apply to

any individual who cooperates or testifies with the Government in the prosecution

of a state or federal offense).

      Generally, the Government’s breach of a plea agreement results in remand

to the district court for its determination as to whether the defendant should be

resentenced by a different judge or should be allowed to withdraw his guilty plea.

United States v. Brye, 

, 1213 (10th Cir. 1998). Because Alvarez

does not allege the Government intentionally breached the agreement and he

appeals only the non-custodial portions of his sentence, setting aside the plea

agreement is not necessary. 

waive transfer of this case to a




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different judge. 1 Accordingly, the non-custodial portions of the sentence imposed

by the district court are VACATED and the case is REMANDED for

resentencing under the terms of the plea agreement.



                                      Entered by the Court:

                                      TERRENCE L. O’BRIEN
                                      United States Circuit Judge




      1
        We need not decide whether the Supreme Court’s language in Santobello
v. New York, 

, 263 (1971), is properly viewed as stating an automatic
rule that our remand for resentencing requires a transfer to a different judge,
although we recognize this issue is decided differently among the circuits. See,
e.g., United States v. Hayes, 

, 236 (3rd Cir. 1991) (if specific
performance is elected, [defendant] must be resentenced by a different judge as
dictated in Santobello). But see United States v. Bowler, 

, 856 (7th
Cir. 1978) (resentencing before a different judge is not necessary); United States
v. Arnett, 

, 1166 (9th Cir. 1979) (remand need not be to a different
judge).

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