UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-1192 _______________

UNITED STATES OF AMERICA

v.

DANNY CRUZ, Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:20-cr-00161-001) District Judge: Honorable Christopher C. Conner _______________

Argued: November 6, 2023 Before: RESTREPO, BIBAS, and SCIRICA, Circuit Judges

(Filed: March 8, 2024)

Craig E. Kauzlarich [ARGUED] ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 Counsel for Appellant Christian T. Haugsby [ARGUED] U.S. ATTORNEY’S OFFICE 1501 North 6th Street, 2nd Floor Harrisburg, PA 17102 Counsel for Appellee _______________

OPINION OF THE COURT _______________ BIBAS, Circuit Judge. Prosecutors must keep their promises. And if they do not, they must make things right quickly, clearly, and fully. The prosecution here did not do that. Though it promised to support a total offense level of 14 at sentencing, it later endorsed an extra enhancement. After the defendant objected, the prosecu- tion changed course and took no position on the enhancement. But that was not enough. The prosecution neither retracted its erroneous position unequivocally nor fulfilled its promise to the defendant. So we will vacate the sentence and remand to let a different judge consider the right remedy. I. CRUZ PLEADED GUILTY TO A CELLPHONE CONSPIRACY Danny Cruz wanted to make money behind bars. So he hatched a plan to smuggle cell phones into prison and sell them to his fellow inmates. To get the phones in, he bribed a prison guard. Unfortunately for him, the government caught on to his scheme.

2 Cruz was charged with conspiring to violate the Travel Act (by bribing a prison guard) under 18 U.S.C. § 371. Facing up to five more years in prison, he took a plea deal. He pleaded guilty in exchange for the prosecution’s “agree[ment] to rec- ommend … that the total offense level is 14, which is based on a [base offense] level 12 per U.S.S.G. § 2C1.1(a)(2) (bribery of a public official) and a two-level increase per U.S.S.G. § 2C1.1(b)(1) (more than one bribe).” App. 29. Yet “[e]ach party reserve[d] the right to make whatever remaining argu- ments it deem[ed] appropriate” about how to “appl[y] … the … Sentencing … Guidelines to [Cruz’s] conduct.” App. 29– 30. And if the court asked for briefing, argument, or evidence on how to apply the Guidelines, the prosecution was free to respond. Though the parties agreed on these calculations, the Proba- tion Office did not. It called for a four-level enhancement because the crime involved “a[ ] public official in a … sensi- tive position.” U.S.S.G. § 2C1.1(b)(3). That enhancement would make the adjusted offense level 18: • Base offense level for bribery (agreed-upon) 12 • Plus enhancement for multiple bribes (agreed-upon) +2 • Plus enhancement for bribing public official in sensitive job (disputed) +4 Adjusted offense level 18 • Minus acceptance-of-responsibility discount (undisputed) -3 Final offense level 15

3 Cruz objected that the sensitive-public-official enhancement did not apply and did not reflect the plea agreement. So, he said, “if the Government endorses the enhancement[,] that … would contravene the Plea Agreement.” App. 74. The prosecu