United States v. Karil Mukai, 26 F.3d 953 (9th Cir. 1994). · Go Syfert
United States v. Karil Mukai, 26 F.3d 953 (9th Cir. 1994). Cases Citing This Book View Copy Cite
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78 citation events (50 in the last 25 years) across 16 distinct courts.
Strongest positive: Ghosh v. State (alaskactapp, 2017-06-16)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 40 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Ghosh v. State
Alaska Ct. App. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
if the court later finds the disposition in the plea agreement objectionablef, it ... should withdraw its acceptance of the plea agreement and permit the parties to renegotiate a more appropriate sentence or opt for trial.
discussed Cited as authority (verbatim quote) United States v. Eric Sanchez
3rd Cir. · 2009 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the rules contain no provision for the district court to modify a rule 11(e)(1)(c) plea agreement.
discussed Cited as authority (verbatim quote) United States v. Sanchez (2×) also: Cited "see, e.g."
3rd Cir. · 2009 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the rules contain no provision for the district court to modify a rule 11(e)(1)(c) plea agreement.
examined Cited as authority (verbatim quote) United States v. Rose Hajay Bernard
3rd Cir. · 2004 · quote attribution · 1 verbatim quote · confidence high
if the court later finds the disposition in the plea agreement objectionable it should not reduce the sentence unilaterally in such cases, but rather should withdraw its acceptance of the plea agreement
discussed Cited as authority (verbatim quote) United States v. Gerardo Alfonso Reyes & Raul Reyes (2×) also: Cited "see"
9th Cir. · 2002 · signal: see · quote attribution · 1 verbatim quote · confidence high
the rules contain no provision for the district court to modify a rule 11(e)(1)(c) plea agreement.
examined Cited as authority (verbatim quote) United States v. Bobbie Marshall (4×) also: Cited as authority (rule), Cited "see"
9th Cir. · 1994 · signal: see · quote attribution · 1 verbatim quote · confidence high
if the court did not find the terms ... appropriate, its only option was to reject the agreement in its entirety.
discussed Cited as authority (rule) Dalton v. The Pines Resorts of California, LLC
E.D. Cal. · 2022 · confidence medium
That 24 is, an ADA plaintiff must show “either that he is deterred from returning to the facility or that he 25 intends to return to the facility and is therefore likely to suffer repeated injury.” Chapman, 631 26 F.3d at 953.
discussed Cited as authority (rule) (PC) Sekona v. Horowitz
E.D. Cal. · 2020 · confidence medium
Stated another way, “[c]laim 22 preclusion. . . bars any subsequent suit on claims that were raised or could have been raised in a 23 prior action.” Cell Therapeutics, Inc. v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 2009). 24 “Newly articulated claims based on the same nucleus of facts are also subject to a res judicata 25 finding if the claims could have been brought in the earlier action.” Stewart v. U.S. Bancorp, 297 26 F.3d 953, 956 (9th Cir. 2002).
discussed Cited as authority (rule) City Of Oakland v. Oakland Raiders
N.D. Cal. · 2020 · confidence medium
Co. of Cal., 190 F.3d 1051, 1054 (9th Cir. 23 1999)). 24 The first of those factors, “antitrust injury,” is a “substantive element of an antitrust claim, 25 and the fact of injury or damage must be alleged at the pleading stage.” Somers v. Apple, Inc., 729 26 F.3d 953, 963 (9th Cir. 2013). “‘Antitrust injury’ means ‘injury of the type the antitrust laws were 27 intended to prevent and that flows from that which makes defendants’ acts unlawful,’” and 1 flows from that which makes the conduct unlawful, and (4) that is of the type the antitrust laws 2 were intended to preven…
cited Cited as authority (rule) United States v. Scott
1st Cir. · 2017 · confidence medium
See United States v. Kraus, 137 F.3d 447, 449 (7th Cir. 1998); United States v. Mukai, 26 F.3d 953, 956-57 (9th Cir. 1994); United States v. Olesen, 920 F.2d 538, 543 (8th Cir. 1990).
discussed Cited as authority (rule) United States v. Raul Mercado-Moreno
9th Cir. · 2017 · confidence medium
In enacting Rule 11, Congress “evidenced its intent to require a district court to sentence a defendant in accordance with the plea agreement.” United States v. Mukai, 26 F.3d 953, 956 (9th Cir. 1994) (citation omitted).
examined Cited as authority (rule) United States v. Randock (3×) also: Cited "see"
9th Cir. · 2009 · confidence medium
R.Crim.P. 11(c)(1)(C); see also United States v. Cervantes-Valencia, 322 F.3d 1060, 1062 (9th Cir.2003) (per curiam); United States v. Mukai, 26 F.3d 953, 956-57 (9th Cir.1994).
examined Cited as authority (rule) United States v. Randock (3×) also: Cited "see"
9th Cir. · 2009 · confidence medium
R.Crim.P. 11(c)(1)(C); see also United States v. Cervantes-Valencia, 322 F.3d 1060, 1062 (9th Cir.2003) (per curiam); United States v. Mukai, 26 F.3d 953, 956-57 (9th Cir.1994).
discussed Cited as authority (rule) United States v. Bp Products North America Inc.
S.D. Tex. · 2009 · confidence medium
Instead, the parties are “returned to their pre-plea posture.” United States v. Cervantes-Valencia, 322 F.3d 1060, 1062 (9th Cir.2003) (citing United States v. Mukai, 26 F.3d 953, 955-56 (9th Cir.1994)); see also United States v. Agosto-Vega, No. 05-0157, 2007 WL 4116847 , at *2 (D.P.R.
discussed Cited as authority (rule) United States v. Bride (2×) also: Cited "see"
9th Cir. · 2008 · confidence medium
Assuming, without deciding, that a defendant being sentenced pursuant to a Rule 11(c)(1)(C) plea agreement retains some right of allocution, see United States v. Mukai, 26 F.3d 953, 956 (9th Cir.1994); United States v. Mejia, 953 F.2d 461, 468 (9th Cir.1991), the district court afforded Bride that right here by addressing him personally and permitting him to speak on his own behalf before his sentence was imposed.
discussed Cited as authority (rule) In Re Morgan (2×) also: Cited "see, e.g."
9th Cir. · 2007 · confidence medium
See, e.g., United States v. Reyes, 313 F.3d 1152, 1157 (9th Cir.2002) (holding, where district court stated that it accepted a plea agreement "`as in every detail and part'" but imposed a longer sentence than contemplated by the plea agreement, that "the district court did not `accept' the plea agreement," but rather "rejected the plea and substituted its own view of the appropriate sentence under the guidelines"); United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994) ("The rules contain no provision for the district court to modify a [former] Rule 11(e)(1)(C) plea agreement. . . ."); United…
discussed Cited as authority (rule) Morgan v. United States District Court for the District of Arizona (2×) also: Cited "see, e.g."
9th Cir. · 2007 · confidence medium
See, e.g., United States v. Reyes, 313 F.3d 1152, 1157 (9th Cir.2002) (holding, where district court stated that it accepted a plea agreement “ ‘as in every detail and part’ ” but imposed a longer sentence than contemplated by the plea agreement, that “the district court did not ‘accept’ the plea agreement,” but rather “rejected the plea and substituted its own view of the appropriate sentence under the guidelines”); United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994) (“The rules contain no provision for the district court to modify a [former] Rule 11(e)(1)(C) plea ag…
discussed Cited as authority (rule) United States v. Bruce Dewayne Jensen
8th Cir. · 2006 · confidence medium
At resentencing, the district court may either impose a sentence consistent with the plea agreement, see, e.g., United States v. Arrieta, 436 F.3d 1246, 1251 (10th Cir.), cert. denied, — U.S. —, 126 S.Ct. 2368 , 165 L.Ed.2d 291 *654 (2006); United States v. Goodall, 236 F.3d 700, 706 (D.C.Cir.2001), or withdraw its acceptance of the plea agreement, permit Jensen to withdraw his plea of guilty, and set the case for trial, see, e.g., United States v. Carr, 170 F.3d 572, 576 (6th Cir.), cert. denied, 527 U.S. 1028 , 119 S.Ct. 2381 , 144 L.Ed.2d 783 (1999); United States v. Mukai 26 F.3d 953, …
cited Cited as authority (rule) United States v. Barajas-Perez
9th Cir. · 2005 · confidence medium
We review de novo, see United States v. Mukai, 26 F.3d 953, 954 (9th Cir.1994), and we vacate the sentence and remand.
cited Cited as authority (rule) United States v. Terry L. Peveler
6th Cir. · 2004 · confidence medium
Fed.R.Crim.P. 35(b) has been deemed a potential basis for relief in an "exceptional case,” United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994).
examined Cited as authority (rule) United States v. Carlos Cervantes-Valencia, AKA Carlos Cervantes, AKA Carlos Valencia Cervantes, AKA Carlos Diaz (4×) also: Cited "see"
9th Cir. · 2003 · confidence medium
Notes: 1 Contrary to the majority's suggestion, the district court's decision did not contradict United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994), because the district court did not "modify" the sentence by departing upward or downward from Cervantes-Valencia's sentence, but instead construed the agreement to encompass the time Cervantes-Valencia served for the same criminal conduct.
cited Cited as authority (rule) United States v. Martin Perez-Corona, AKA Martin Perez
9th Cir. · 2002 · confidence medium
United States v. Mukai, 26 F.3d 953, 954 (9th Cir.1994).
discussed Cited as authority (rule) United States v. Goodall, Rodney (2×)
D.C. Cir. · 2001 · confidence medium
E.g., United States v. Barnes, 83 F.3d 934, 941 (7th Cir.1996) (“Plea agreements can retain their authority to bind the government, the defendant and the district court even when they provide for sentences that depart from the prescriptions of the guidelines.”); United States v. Mukai, 26 F.3d 953, 956-57 (9th Cir.1994); Cunavelis, 969 F.2d at 1422 ; see also John M.
cited Cited as authority (rule) United States v. Morgan
5th Cir. · 1999 · confidence medium
See United States v. Gilchrist, 130 F.3d 1131, 1133 (3d Cir. 1997); United States v. Veri, 108 F.3d 1311, 1315 (10th Cir. 1997); United States v. Mukai, 26 F.3d 953, 955-56 (9th Cir. 1994).
discussed Cited as authority (rule) United States v. Moure-Ortiz
1st Cir. · 1999 · confidence medium
“If the Court'-did not find the terms [of the -agreement] appropriate, its only option was to reject the agreement inits entirety.” United States v. Mukai, 26 F.3d 953, 956 (9th Cir.1994): See also United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir.1997) (“An 11(e)(1)(C) plea agreement, once accepted, binds the district court notwithstanding departures from the applicable guidelines”); United States v. Veri, 108 F.3d 1311, 1315 (10th Cir.1997) (“[I]f a sentencing court accepts a Rule 11(e)(1)(C) agreement, it is bound by the agreement and may not modify it”.). *4 In defense of…
discussed Cited as authority (rule) United States v. Veri (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
See United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995) (over dissent’s protest, treating plea agreement for sentence within range of 108-135 months as binding agreement; i.e., as agreement under Rule 11(e)(1)(C)); United States v. Nutter, 61 F.3d 10, 11-12 (2d Cir. 1995) (holding range of 155-181 months was specific enough to satisfy 18 U.S.C. § 3742 (c)(1) and Rule 11(e)(1)(C)); United States v. Mukai, 26 F.3d 953, 954, 955 (9th Cir. 1994) (holding plea agreement providing for five to seven years’ imprisonment was Rule 11(e)(1)(C) agreement); United States v. Abarca, 985 F.2d 1012…
discussed Cited as authority (rule) United States v. David A. Veri (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
See United States v. Yemitan, 70 F.3d 746, 747 (2d Cir.1995) (over dissent’s protest, treating plea agreement for sentence within range of 108-135 months as binding agreement; i.e., as agreement under Rule 11(e)(1)(C)); United States v. Nutter, 61 F.3d 10, 11-12 (2d Cir.1995) (holding range of 155- *1314 181 months was specific enough to satisfy 18 U.S.C. § 3742 (c)(1) and Rule 11(e)(1)(C)); United States v. Mukai, 26 F.3d 953, 954, 955 (9th Cir.1994) (holding plea agreement providing for five to seven years’ imprisonment was Rule 11(e)(1)(C) agreement); United States v. Abarca, 985 F.2d …
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. John Robert LITTLEFIELD, Defendant-Appellant (2×)
9th Cir. · 1997 · confidence medium
The district court does not have the authority to modify an 11(e)(1)(C) plea agreement, even in "exceptional circumstances." United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994). 21 Nonetheless, Littlefield argues that the district court's oral pronouncement of a right to appeal controls over a plea agreement waiver, citing United States v. Buchanan, 59 F.3d 914 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 430 , 133 L.Ed.2d 345 (1995).
discussed Cited as authority (rule) United States v. Albert Bedonie
9th Cir. · 1996 · confidence medium
Bedonie's agreement with the government was of the type specified in subdivision (e)(1)(C). 12 The district court "may accept or reject" a subdivision (e)(1)(C) agreement, Fed.R.Crim.P. 11(e)(2), but it may not sentence "a defendant to a sentence less severe than that provided for in the plea agreement accepted by the court." United States v. Mukai, 26 F.3d 953, 955-56 (9th Cir.1994) (quoting United States v. Semler, 883 F.2d 832, 833 (9th Cir.1989)).
cited Cited "see" United States v. Isabel Perez-Arellanez
9th Cir. · 2016 · signal: see · confidence high
See United States v. Mukai 26 F.3d 953, 954-56 (9th Cir. 1994).
discussed Cited "see" Perocier-Morales v. United States
D.P.R. · 2012 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 956 (9th Cir. 1994) ("If the Court did not find the terms [of the agreement] appropriate, its only option was to reject the agreement in its entirety.”); United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir.1997) ("An 11(e)(1)(C) plea agreement, once accepted, binds the district court notwithstanding departures from the applicable guidelines”); United States v. Veri, 108 F.3d 1311, 1315 (10th Cir.1997) ("If a sentencing court accepts a Rule 11(e)(1)(C) agreement, it is bound by the agreement and may not modify it----").
cited Cited "see" United States v. Rivera-Martinez
1st Cir. · 2010 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994) (noting that "[t]he rules contain no provision for the district court to modify a [C-type] plea agreement").
cited Cited "see" United States v. Rivera-Martínez
1st Cir. · 2010 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994) (noting that “[t]he rules contain no provision for the district court to modify a [C-type] plea agreement”).
discussed Cited "see" United States v. Rafael Pacheco-Navarette, United States of America v. Victor Alfonso Gomez-Vera (2×) also: Cited "see, e.g."
9th Cir. · 2005 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 955-56 (9th Cir.1994) (requiring the district court to accept or reject a sentencing arrangement outside of the Guidelines, but not modify it).
discussed Cited "see" United States v. Pacheo-Navarette (2×) also: Cited "see, e.g."
9th Cir. · 2005 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953 ; 955-56 (9th Cir. 1994) (requiring the district court to accept or reject a sentencing arrangement outside of the Guidelines, but not modify it).
discussed Cited "see" United States v. Yednak
W.D. Pa. · 2002 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 956 (9th Cir.1994) *426 (stating that “[i]f the court did not find the terms of [one paragraph of the plea agreement] appropriate, its only option was to reject the agreement in its entirety”); United States v. Cunavelis, 969 F.2d 1419, 1422 (2d Cir.1992) (“The district court may accept or reject a[ ] ... plea [agreement], but it may not modify it.”).
discussed Cited "see" UNITED STATES of America, Plaintiff-Appellee, v. Phillip SCHUMAN, Defendant-Appellant (2×)
9th Cir. · 1997 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 956 (9th Cir.1994) (“[I]f the court later finds the disposition in the plea agreement objectionable it ‘should not reduce the sentence unilaterally in such cases, but rather should withdraw its acceptance of the plea agreement and permit the parties to renegotiate .a more appropriate sentence or opt for trial.’ ”) (citing United States v. Sender, 883 F.2d 832, 835 (9th Cir.1989)).
cited Cited "see" United States v. William Lee Seaman
9th Cir. · 1994 · signal: see · confidence high
See United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994).
discussed Cited "see, e.g." Valvano v. East Side Anesthesia
1st Cir. · 1995 · signal: see, e.g. · confidence low
See, e.g., United States v. Mukai, 26 F.3d 953 (9th Cir. 1994) (government appealed the refusal by the district court to allow it to withdraw from a plea agreement when the court imposed a sentence lower than that contained in the agreement); United States v. Skidmore, 998 F.2d 372 (6th Cir. 1993) (government appealed the district court's imposition of a sentence which did not order forfeiture as the parties had specified).
cited Cited "see, e.g." United States v. Schaechter
D. Maryland · 1995 · signal: see also · confidence medium
See also United States v. Mukai, 26 F.3d 953, 955 (9th Cir.1994). .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
Karil MUKAI, Defendant-Appellee
92-30463.
Court of Appeals for the Ninth Circuit.
Jun 8, 1994.
26 F.3d 953
94 Cal. Daily Op. Serv. 4208
1994 U.S. App. LEXIS 13571
1994 WL 243725
David T. Shelledy, Asst. U.S. Atty., Crim. Div., Washington, DC, for plaintiff-appellant., Jeffrey D. Cohen and Karen O’Shea, Browne & Ressler, Seattle, WA, for defendant-appellee.
Hug, Hall, Thompson.
Cited by 50 opinions  |  Published

Opinion by Judge CYNTHIA HOLCOMB HALL.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The government appeals Karil Mukai’s sentence and the district court’s refusal to allow it to withdraw from its plea agreement. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the questions of law presented in this appeal, see United States v. Fernandez, 960 F.2d 771, 772 (9th Cir.1992), and reverse and remand for resentencing.,

I

Karil Mukai entered into a plea agreement with the government whereby she agreed to enter pleas of guilty to Counts I and II of the indictment. In return, the government agreed to (1) dismiss Count III of the indictment, (2) not prosecute Mukai for other drug-related offenses, including her “bail jumping,” and (3) not seek forfeiture of Mu-kai’s parent’s home, which she had pledged to secure her release on bond before she jumped bail.

With regard to Mukai’s sentence, the agreement provided:

7. Further, pursuant to Rule 11(e)(1)(C), the parties agree that the appropriate disposition of this case shall include imprisonment for not less than five (5) years and not more than seven (7) years. If the Court, after reviewing a presentence report determines to sentence the defendant to less than five (5) years, then the United States shall be afforded an opportunity to withdraw from this plea agreement; if the Court determines to sentence the defendant to more than seven (7) years, then the defendant shall be afforded an opportunity to withdraw her plea of guilty.
8. Finally, if the defendant’s cooperation and truthful testimony is of substantial assistance in the investigation and/or prosecution of others, the Government will file with the Court a motion pursuant to See[*955] tion 5K1.1 of the Sentencing Guidelines permitting the Court to sentence the defendant to less than the otherwise applicable guideline range and within the range contemplated by the plea agreement.

Finding that Mukai had provided substantial assistance, the government filed a motion pursuant to § 5K1.1 permitting the district court to depart from the otherwise applicable guideline range. The district court departed downward and sentenced Mukai to five years of probation, a sentence substantially less than the minimum sentence of five years of imprisonment set forth in the plea agreement.

Relying on paragraph 7 of the plea agreement, the government moved to withdraw from the agreement, but the district court denied the government’s request. The government appeals the district court’s sentencing decision and its refusal to allow the government to withdraw from the agreement.

II

Rule 11(e) of the Federal Rules of Criminal Procedure describes three categories of plea agreements: an agreement that moves “for dismissal of other charges,” Fed. R.Crim.P. 11(e)(1)(A); an agreement that makes a recommendation or contains an agreement “not to oppose the defendant’s request! ] for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court,” id. 11(e)(1)(B); and an agreement that “a specific sentence is the appropriate disposition of the case,” id. 11(e)(1)(C). The court may “accept or reject” a plea agreement of “the type specified in subdivision (e)(1)(A) or (C).” Id. 11(e)(2). If the district court accepts the plea agreement, then the court’s judgment and sentence shall embody the disposition provided for in the plea agreement. Id. 11(e)(3). The rules contain no provision for the district court to modify a Rule 11(e)(1)(C) plea agreement, such as Mukai’s agreement, and this court has stated that “Rule 11(e)(3) prohibits a district court from sentencing a defendant to a sentence less severe than that provided for in the plea agreement accepted by the court.” United States v. Semler, 883 F.2d 832, 833 (9th Cir.1989).

Despite the general prohibition against modifying Rule 11(e)(1)(A) or (C) plea agreements, the district court, relying on our decision in United States v. Fernandez, 960 F.2d 771 (9th Cir.1992) (per curiam), nonetheless concluded that in this circuit the general rule will give way in a ease presenting “exceptional circumstances.” In Fernandez, we stated that:

When a plea agreement is made pursuant to Fed.R.Crim.P. 11(e)(1)(C), the trial court may accept or reject the agreement, but, absent exceptional circumstances, it may not accept the defendant’s guilty plea and impose a sentence greater, United States v. Herrera, 640 F.2d 958, 960 n. 2 (9th Cir.1981) (dictum); United States v. Burruezo, 704 F.2d 33, 38 (2d Cir.1983), or less severe, Semler, 883 F.2d at 833, than that agreed upon.

960 F.2d at 773 (emphasis added).

Neither Fernandez nor the first two cases cited in support of this proposition, Herrera and Burruezo, discuss exceptional circumstances. The phrase therefore apparently refers to a standard announced in Semler, the third cited decision. In Semler, we suggested that in an “exceptional ease” the district court, after initially sentencing a defendant, may réduce the sentence in response to a Rule 35(b) motion. [1] Semler, 883 F.2d at 835. Thus, absent a Rule 35(b) motion, the law in this circuit has not previously recognized “exceptional circumstances” as a basis for disregarding the sentence contained in a plea agreement under Rule 11(e)(1)(C).

Moreover, there exists no reason to implement such an exception. The time for the court to evaluate whether the impact of exceptional circumstances renders the agreement inappropriate is prior to acceptance[*956] and, as the court explained in Sender, if the court later finds the disposition in the plea agreement objectionable it “should not reduce the sentence unilaterally in such eases, but rather should withdraw its acceptance of the plea agreement and permit the parties to renegotiate a more appropriate sentence or opt for trial.” Semler, 883 F.2d at 835. The district court erred in concluding “exceptional circumstances” might justify disregarding the terms of the plea agreement that it had accepted.

Mukai offers an alternative basis for affirming her sentence. Relying on the general proposition that “[i]n section 5K1.1 departures ... the government has no control over the extent of the departure,” United States v. Udo, 963 F.2d 1318, 1319 (9th Cir.1992), Mukai argues that the government’s § 5K1.1 motion gave the district court the authority to depart downward as much as it deemed appropriate without regard for the terms of the agreement.

The Second Circuit has considered the conflict between the sentencing court’s usual discretion to determine the appropriate extent of departure in response to a § 5K1.1 motion and the binding effect of sentencing limitations imposed by an accepted plea agreement under Rule 11(e)(1)(C). In United States v. Cunavelis, 969 F.2d 1419 (2d Cir.1992), the government and defendant entered into a plea agreement providing that the government would make a motion for downward departure pursuant to § 5K1.1. Cunavelis, 969 F.2d at 1421. The agreement limited the downward adjustment, however, by providing “that the final guideline offense level as found by the Court be reduced by four levels and that the defendant be sentenced within the corresponding guideline range.” Id. At sentencing, defendant argued that the district court nevertheless had discretion to depart further because it was not a party to the agreement. Id. The district court rejected this argument, holding that Rule 11(e)(1)(C) required it to implement the parties’ agreement. Id. Accordingly, the district court limited the departure to four levels.

The Second Circuit agreed with the district court. Relying in large part on this circuit’s decisions in Semler and Fernandez, the Second Circuit concluded that the dictates of Rule 11, which do not authorize the district court to modify a plea agreement, trump the discretion afforded a district court under § 5K1.1. In reaching this conclusion, the court cited the guidelines, which state that “[t]he rules set forth in Fed.R.Crim.P. 11(e) govern the acceptance or rejection of [plea] agreements.” Cunavelis, 969 F.2d at 1422 (citing U.S.S.G. Ch. 1, Pt. A., intro, comment 4(c) (Nov. 1991)). Further support was found in the history of Rule ll’s adoption:

The version of 11(e)(3) proposed by the Supreme Court in 1974 stated that “the court shall inform the defendant that it will embody in the ... sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.” The House Judiciary Committee then deleted the language “or another disposition more favorable to the defendant than that provided for in the plea agreement,” and the House affirmed the committee’s action by rejecting on the floor an amendment offered to restore the Supreme Court’s version of the rule. The Senate accepted the House’s version of the rule.
By deleting the Supreme Court’s “more favorable to the defendant” language, Congress evidenced its intent to require a district court to sentence a defendant in accordance with the plea agreement.

Id. at 1422-23 (quoting Semler, 883 F.2d at 833-34) (citations omitted).

We find the reasoning of Cunavelis persuasive. Moreover, accepting Mukai’s argument would require the district court to ignore a portion of the agreement while respecting the balance. The court does not have such authority. See Fernandez, 960 F.2d at 773 (court erred in rejecting one paragraph of plea agreement rather than either accepting or rejecting entire agreement). If the court did not find the terms of paragraph 7 appropriate, its only option was to reject the agreement in its entirety. Accordingly, we remand the case to the district court with instructions either to accept the[*957] plea agreement and abide by its terms or reject the agreement and afford the government and Mukai the opportunity to renegotiate an agreement.

REVERSED AND REMANDED.

1

. The version of Rule 35(b) currently in effect provides only for motion by the government. The Semler court interpreted an earlier version of Rule 35(b) which countenanced a motion to reduce the sentence filed by the defendant.

The court described an "exceptional case” as one "where the sentence is plainly unjust or unfair in light of the information the district court received after sentencing the defendant.” Semler, 883 F.2d at 835 (emphasis added).