(E)  Remedy.  Upon a breach of the plea bargain at sentencing, one remedy is to invalidate the plea.  Another remedy is to grant specific performance of the plea bargain, which implies vacating the erroneous sentence, and re-sentencing the defendant in accordance with the plea bargain.[313] “In a situation where the judge has imposed a sentence in excess of the one the defendant was induced to believe he or she would receive, the sentence should be at least voided and, in some circumstances, the defendant entitled to reconsider and withdraw his plea.”[314] The court in its discretion is free to choose the remedy for breach of the plea agreement.[315]  The order vacating the original sentence effectively eliminates it for immigration purposes (as well as criminal purposes).  This ground would suffice to resolve the immigration problem only where the sentence imposed after the original sentence has been vacated would avoid the immigration damage.

[313] Brown v. Poole, 337 F.3d 1155 (9th Cir. August 4, 2003) (defendant entered into plea agreement upon prosecutor’s false promise on the record that good behavior in prison, defendant would be released in half the time; such false promise lies on prosecutor who made offer and judge who could have clarified that prosecutor had no power to make such commitment; specific performance only remedy, as petitioner served 17 years, and “paid in a coin that the state cannot refund.”).

[314] Cafone, Vacation of Illegal Sentences, Criminal Defense Techniques § 46.04[5] (2003).

[315] United States v. Mercedes-Amparo, 980 F.2d 17 (1st Cir. 1992); Kingsley v. United States, 968 F.2d 109 (1st Cir. 1992); Dunn v. Colleran, 247 F.3d 450 (3d Cir. 2001); United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997); State v. Warren, 558 A.2d 1312 (N.J. 1989) (specific performance possible remedy).

Ninth Circuit

POST CON RELIEF " GROUNDS " BREACH OF PLEA AGREEMENT
United States v. Heredia, 768 F.3d 1220 (9th Cir. Oct. 8, 2014) (vacating sentence on grounds that the government violated the plea agreement by making repeated inflammatory references to the defendant's criminal history in its sentencing memorandum, in effect arguing for a higher punishment than it had agreed to recommend; the court reversed the sentence, not the conviction, since the defendant waived any argument the error invalidated the conviction itself).