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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-40313
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASHTON LADAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
( June 8, 1995)
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
POLITZ, Chief Judge:
Ashton Laday appeals the rejection of his motion to withdraw
his plea of nolo contendere to the charge of exportation of a
stolen vehicle, 18 U.S.C. § 553. For the reasons assigned we
vacate the sentence and remand for compliance with the plea
agreement and, thereafter, appropriate resentencing.
Background
In June of 1993 Laday was charged with conspiring to export
stolen vehicles and their exportation for his participation in a
scheme to export a stolen backhoe to the country of Belize. Laday

and the prosecutor entered into a plea agreement wherein he agreed
to plead guilty to exportation of a stolen vehicle and the
government agreed, in part, to move at sentencing for a U.S.S.G.
§ 5K1.1 downward departure if Laday provided substantial assistance
to the government's further actions in the matter.1
During the Fed.R.Crim.P. 11 plea colloquy Laday told the court
that he did not know that the subject backhoe was stolen. The
court refused to accept Laday's plea of guilty because the offense
of exportation of a stolen vehicle required knowledge that the
vehicle was stolen. After a brief recess during which there was a
consultation between the prosecution and defense, Laday moved to
change his plea from guilty to nolo contendere. The government
agreed to the new plea and the written agreement was revised to
reflect that the plea would be one of no contest rather than
guilty. There were no other changes in the plea agreement. The
1The plea agreement provides in pertinent part:
The Defendant understands that if he provides
substantial
assistance
in
the
investigation
or
prosecution of others, the United States Government will
file a motion at the time of sentencing informing the
Court that the Defendant provided substantial assistance
. . . so that the Court can, in its discretion, depart
from the guidelines as contemplated by §5K1.1 of the
Federal Sentencing Guidelines Manual. The United States
Government agrees to inform the Court at the time of
sentencing of the full extent of the assistance provided
by the Defendant. It is understood by the Defendant that
the Government's motion for downward departure pursuant
to §5K1.1 of the Federal Sentencing Guidelines Manual is
conditioned upon the Defendant's full and substantial
assistance (as determined by the policy and procedures of
the United States Attorney's Office for the Eastern
District of Texas) including, but not limited to,
testimony before the Grand Jury or at trial in this and
other state and federal jurisdictions.
2

court accepted the nolo contendere plea and ordered a Presentence
Investigation Report preparatory to sentencing.
The probation officer preparing the PSR reported that Laday
continued to maintain that he had no knowledge that the backhoe was
stolen. Because of Laday's continued protestation of a lack of
guilty knowledge, the government made no effort to determine
whether he could furnish substantial assistance in its
investigation or prosecution of others.
At the sentencing hearing Laday moved to withdraw his plea,
contending that the government breached the plea agreement by
denying him an opportunity to provide substantial assistance. The
district court rejected the motion, concluding that to force the
government to interview Laday would be a futile exercise
considering his continuting denial of knowledge that the backhoe
was stolen. The court then sentenced Laday to 21 months
imprisonment, a fine of $5000, restitution of $8000, the statutory
assessment, and three years of supervised release. Laday timely
appealed the denial of his motion to withdraw his plea.
Analysis
Laday asserts that the government breached the plea agreement
by denying him an opportunity to substantially assist it in its
investigation or prosecution of others. We review a claim of a
breach of a plea agreement de novo.2 A defendant asserting a
breach bears the burden of proving, by preponderance of the
2United States v. Valencia, 985 F.2d 758 (5th Cir. 1993).
3

evidence,3 the underlying facts establishing a breach.
It is apparent from the record that the government breached
the plea agreement. Having been informed that Laday maintained his
lack of knowledge that the subject backhoe was stolen, the
prosecutor decided not to interview him.4 Under the plea agreement
the government did not have the prerogative of denying Laday an
opportunity to provide substantial assistance.5
Conceding that it did not interview Laday or otherwise give
him an opportunity to provide assistance prior to sentencing, the
government maintains that Laday's denial of knowledge that the
backhoe was stolen made any assistance he might offer
insubstantial, thus excusing its conduct. We are not persuaded.
The government was aware of Laday's claim of a lack of guilty
knowledge when it committed to the amended plea agreement calling
for his plea of nolo contendere. The government may not now use
that claim to avoid its obligations under the express terms of the
plea agreement.
Concluding that the government breached the plea agreement
with Laday, we VACATE his sentence and REMAND for compliance with
the plea agreement and, thereafter, for appropriate resentencing by
3United States v. Palomo, 998 F.2d 253 (5th Cir.), cert.
denied, 114 S.Ct. 358 (1993).
4Perhaps the plea decisions of codefendants factored heavily
into this equation.
5See United States v. Ringling, 988 F.2d 504 (4th Cir. 1993)
(holding similar language in a plea agreement to obligate the
government to conduct an interview of the defendant).
4

a different judge.6 In so ordering we echo the words of the
Supreme Court and "emphasize that this is in no sense to question
the fairness of the sentencing judge; the fault here rests on the
prosecutor, not on the sentencing judge."7
VACATED and REMANDED.
6Palomo, 998 F.2d at 256.
7Santabello v. New York, 404 U.S. 257, 263 (1971).
5