The Tenth Circuit Court of Appeals published its opinion in United States v. Oakes on Tuesday, June 5, 2012.
The Tenth Circuit affirmed the district court’s decision. “Upon entering a plea agreement with the government, [Petitioner] pleaded guilty . . . to one count of distributing cocaine base. At the sentencing hearing, however, the government breached its promise in the plea agreement not to oppose [Petitioner]’s request that his sentence be concurrent with a prior federal sentence, and the district court sentenced him to 37 months’ imprisonment to run consecutively to the other sentence. When the breach was brought to the court’s attention a few minutes later, the court struck from the record the improper part of the government’s argument but resentenced [Petitioner] to the same consecutive sentence. On appeal [Petitioner] contends that the breach requires that his sentence be vacated and resentencing be set before a different judge.
The Court disagreed. [Petitioner] does not seek, and [the Court] would not order, that he be allowed to withdraw his plea. Therefore, the sole remedy for the government’s breach is resentencing. Ordinarily, [the Court] would order resentencing before another judge. But a defendant can choose to be resentenced before the same judge, that choice can properly be made by defense counsel, and defense counsel made that choice below. Hence, there is no further remedy available for [Petitioner] on direct appeal.