Ocelo-Lopez

MEMORANDUM **

Guadalupe Ocelo-Lopez appeals her 108-month sentence following a guilty plea conviction for conspiracy and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 , 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand for resentencing.

Ocelo-Lopez contends that the government breached the plea agreement by failing to recommend a downward departure for substantial assistance pursuant to U.S.S.G. § 5K1.1. Because we conclude that the government breached the plea agreement, we do not enforce the appeal waiver set forth in the agreement. See United States v. Serrano, 938 F.2d 1058, 1060 (9th Cir.1991).

Plea agreements are contractual in nature and the government is held to the literal terms of the agreement and bears responsibility for any lack of clarity. See United States v. Camarillo-Tello, 236 F.3d 1024, 1026 (9th Cir.2001).

Under the literal terms of the plea agreement, the government agreed to move under section 5K1.1 for a substantial assistance departure and recommend a sentence of 90 months imprisonment if Ocelo-Lopez (1) waived her Fifth Amendment right against self incrimination; (2) provided…