Whether the government has breached a plea agreement is a question of law we review de novo. United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000). Because Reeves failed to object at sentencing, however, we review only for plain error.

Whether the Government has breached a plea agreement is a question of law we review de novo. United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000). The defendant has the burden of proving the underlying facts by a preponderance of the evidence.

DISCUSSION The arguments asserted in this case are interwoven around the question of whether information Gonzalez provided in the debriefing was used against him which was a breach of the agreement between Gonzalez and the Government. Whether the Government's conduct violated the terms of the plea agreement is a question of law which this court reviews de novo.United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000). The party alleging a breach of the plea agreement bears the burden of proving the underlying facts establish a breach by a preponderance of the evidence.

If these statements are not adequate (as opposed to successful), then the agreement has not been fulfilled."). United States v. Saling, 205 F.3d 764, 767 (5th Cir. 2000) (finding a breach where "the prosecutor's statements to the trial judge blatantly violated the plea agreement's express terms"). See id. at 766 (breach occurred at the sentencing hearing); Munoz, 408 F.3d at 225 (same).

Cf. United States v. Grandinetti, 564 F.2d 723, 726 (5th Cir.1977) (“[T]he defendant offers his plea not in exchange for the actual sentence or impact on the judge, but for the prosecutor's statements in court. If these statements are not adequate (as opposed to successful), then the agreement has not been fulfilled.”).United States v. Saling, 205 F.3d 764, 767 (5th Cir.2000) (finding a breach where “the prosecutor's statements to the trial judge blatantly violated the plea agreement's express terms”).See id. at 766 (breach occurred at the sentencing hearing); Munoz, 408 F.3d at 225 (same).

The government . . . conced[es] . . . that Rodriguez is entitled to be resentenced before a different district judge. See Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (providing for remedy of resentencing before a different district judge); United States v. Saling, 205 F.3d 764, 768 (5th Cir. 2000) (same). In light of this concession, we grant the agreed-upon relief by vacating Rodriguez's sentence and remanding for resentencing before a different district judge.

This is how we interpreted Santobello in McCray, 849 F.2d at 305-306, and it is also the consensus view among our sister circuits, which hold that harmless-error analysis does not apply when the government breaches a plea agreement. See United States v. Canada, 960 F.2d 263, 271 (1st Cir.1992); United States v. Vaval, 404 F.3d 144, 154-155 (2d Cir.2005); Dunn v. Colleran, 247 F.3d 450, 461-162 (3rd Cir.2001); United States v. Peglera, 33 F.3d 412, 414 (4th Cir.1994); United States v. Saling, 205 F.3d 764, 766-767 (5th Cir.2000); Cohen v. United States, 593 F.2d 766, 771-772 (6th Cir.1979); United States v. Fields, 766 F.2d 1161, 1170 n. 3 (7th Cir.1985); United States v. Mondragon, 228 F.3d 978, 981 (9th Cir.2000); United States v. Hawley, 93 F.3d 682, 693-694 (10th Cir.1996); United States v. Foster, 889 F.2d 1049, 1055-1056 n. 6 (11th Cir.1989); accord United States v. DeWitt, 366 F.3d 667, 671-672 (8th Cir.2004); United States v. Van Horn, 976 F.2d 1180, 1183-84 (8th Cir.1992). One decision from our court does affirm a sentence, despite a breach by the government, on the view that the breach had "little if any effect" on the district court's decision.

It is true that when a criminal defendant pleads guilty on the basis of a promise by his defense counsel or the prosecutor, whether or not the promise is fulfillable, breach of that promise taints the voluntariness of his plea. Daniel v. Cockrell, 283 F.3d at 703 (recognizing a distinction between a clear and unequivocal promise or guarantee of a lesser sentence and a mere inaccurate prediction that a lesser sentence would be imposed); Montoya v. Johnson, 226 F.3d at 405 (holding that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled); UnitedStates v. Saling, 205 F.3d 764, 766 (5th Cir. 2000) (holding the same); United States v. Cervantes, 132 F.3d at 1110 (holding the same); United States v. Amaya, 111 F.3d 386, 388-89 (5th Cir. 1997) (holding a guilty plea induced by deception, an unfulfilled promise, or misrepresentation is an involuntary plea and a trial court's unenforceable promise to review the Government's decision whether to file a § 5K1.1 motion rendered a guilty plea involuntary); McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir. 1986); Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir. 1986); Bonvillain v. Blackburn, 780 F.2d 1248, 1251 (5th Cir. 1986), cert. denied, 476 U.S. 1143 (1986). However, a "mere understanding" on the part of the defendant that he would receive a lesser sentence in exchange for a guilty plea will not abrogate that plea should a heavier sentence actually be imposed.

After discussing the matter with his counsel, DeClassis waived his right to an evidentiary hearing. On September 24, 2003, the Court instructed the parties to submit supplemental briefs on how the Court should proceed in light of the holdings of Santobello v. New York, 404 U.S. 257 (1971) (holding that a prosecutor must fulfill his promise to a defendant whose guilty plea significantly rests on and was induced by the promise) and United States v. Saling, 205 F.3d 764 (5th Cir. 2000) (holding that, in determining whether the government breached a plea agreement, the court must consider whether the government's conduct is consistent with the defendant's reasonable understanding of the agreement). Neither in his § 2255 motion nor in the supplemental briefing did Petitioner DeClassis ever question his factual guilt.

Generally, whether the Government breached a plea agreement is a question of law that we review de novo. See United States v. Saling, 205 F.3d 764, 766 (5th 2000). We examine "whether the government's conduct is consistent with the defendant's reasonable understanding of the agreement."