State v. Peterson

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,198

STATE OF KANSAS,
Appellee,

v.

ROBERT C. PETERSON,
Appellant.


SYLLABUS BY THE COURT

1.
An allegation that the State breached a plea agreement presents a question of law
over which this court exercises unlimited review.

2.
A prosecutor's comment about a defendant's dishonesty and inability or
unwillingness to address "his looking at child pornography or desire to look at child
pornography" violated the State's promise to stand silent at the sentencing hearing in
which the defendant sought a dispositional departure to probation. The defendant's
sentence must be vacated and the case remanded to a different judge of the district court
for a new sentencing or plea withdrawal.

3.
When a defendant requests specific performance of a plea agreement, the
appropriate remedy for the State's breach, unless harmless, is to vacate the sentence and
remand for a new sentencing hearing before a different judge, where the State will have
the opportunity to fulfill its obligations under the plea agreement.
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Review of the judgment of the Court of Appeals in an unpublished opinion filed July 30, 2010.
Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed February 8, 2013.
Judgment of the Court of Appeals affirming in part and dismissing in part is reversed. Judgment of the
district court is reversed, sentence is vacated, and case is remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Patrick J. Hurley, assistant district attorney, argued the case, and Nicole Romine, assistant district
attorney, Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Robert Peterson pleaded no contest to attempted sexual
exploitation of a child after digital photographs of children engaged in sexual acts were
found on his work computer. The district court judge sentenced Peterson to 52 months in
prison, with lifetime postrelease supervision. In Peterson's petition for review, he claims
that (1) the State violated his plea agreement by failing to remain silent at sentencing; (2)
lifetime postrelease supervision constitutes cruel and/or unusual punishment; and (3) his
sentence violates his rights under the Sixth and Fourteenth Amendments to the United
States Constitution because aggravating factors were not proved to a jury beyond a
reasonable doubt.

We vacate Peterson's sentence and remand to the district court for further
proceedings based on the State's violation of the plea agreement. This result eliminates
any need to reach Peterson's second and third issues.


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FACTUAL AND PROCEDURAL BACKGROUND

Peterson was charged with two counts of sexual exploitation of a child under
K.S.A. 2006 Supp. 21-3516(a)(2). In exchange for Peterson's plea of no contest, the State
amended the information to a single count of attempted sexual exploitation of a child in
violation of K.S.A. 21-3301 and K.S.A. 2006 Supp. 21-3516(a)(2).

As part of the plea agreement, the State agreed not to object to Peterson's motion
for dispositional departure to probation. The State also agreed to remain silent at
sentencing unless there were misstatements of fact.

At the first of two hearings on sentencing, the district judge found Peterson to be a
persistent sex offender because of a 1994 sexual battery conviction. Under the Kansas
Sentencing Guidelines Act, this finding doubled the duration of Peterson's presumptive
sentence.

At the same hearing, Peterson called clinical psychologist Robert Barnett as a
witness. Barnett had not been present at Peterson's preliminary hearing. Barnett testified
that he conducted a clinical interview of and testing on Peterson and, based on the facts
of the case as provided to him by Peterson, concluded that Peterson was "a good
candidate for probation." Peterson had told Barnett that the images of child pornography
were from "pop-up" Internet windows that displayed the images after Peterson did a
search for information on a child's murder that had been the subject of widespread
national media coverage.

The prosecutor at the hearing, Amy McGowan, was not the same prosecutor who
had handled the plea agreement with Peterson, but she did handle his preliminary
hearing. Peterson's counsel had agreed to allow McGowan to cross-examine Barnett.
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McGowan focused her questions on the information Peterson had provided to Barnett,
and Barnett testified that he was aware two girls had accused Peterson of fondling them
in 1994. Barnett admitted he was unaware that there were, in fact, five different girls who
had made accusations; he also was unaware of the children's ages. Barnett also did not
know that, on the two occasions originally charged in this case, Peterson was searching
for variations of the term "lolita" and visiting "lolita" websites while at work.

Peterson objected to McGowan's line of questioning on the grounds that it
presented the same evidence offered at Peterson's preliminary hearing and went "beyond
the scope of the plea agreement in this case which was that the State was going to stand
silent at sentencing." The district court judge overruled the objection because Peterson
had provided an incomplete history to Barnett. The judge said Barnett had "a right to
know" all of the information imparted by McGowan's questions in order to form his
professional opinion.

McGowan then continued her cross-examination. Barnett said he was unaware that
1,297 images of female children in swimsuits and underwear and 617 images of nude
children and children engaged in sexual acts were found on Peterson's work computer.
Barnett nevertheless maintained that he did not believe Peterson was a pedophile or a risk
to the community. McGowan then asked: "But it's been established [Peterson] hasn't
been honest with you about his prior offense or this one?" Barnett answered: "Yes."

After Barnett's testimony, Peterson's counsel, Sarah Swain, presented her
argument to the district court in support of the motion for dispositional departure. Swain
first reminded the court of the State's plea agreement promise to remain silent at
sentencing. She continued: "It seems clear Ms. McGowan wants to re-litigate the facts in
this case."

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After Swain's argument, McGowan spoke:

"Your Honor, I'd like to address—I believe Ms. Swain basically accused me of
violating the plea agreement so I wanted to talk about that if I could.

"Ms. Wilson was the prosecutor who had handled the plea and she wrote very
specific notes about the sentencing agreement and it says, I quote, 'The State will stand
silent if the defendant does not make factual misstatements.'

"I think when I read through Dr. Barnett's report—before you convened court, I
asked Ms. Swain if I would be allowed to question Dr. Barnett because I don't usually see
that when there is an expert as being part of the standing silent agreement, so I did have
her permission to do that prior to beginning court. And I just believe that the plea
agreement would allow me and also her permission to allow me to cross the doctor. I'm
not going to make any argument of that plea agreement with the exception of what Dr.
Barnett had said. I don't think it's fair for the doctor to try to reconsider his findings on
the fly up on the stand when he has all of that information thrown at him. But it does
show Mr. Peterson wasn't being honest with the evaluator about what his involvement
was in this particular case or in his other case, and I think that should be considered by
the court that he cannot or will not address his looking at child pornography or desire to
look at child pornography. That's all I have to say."

At the second hearing on sentencing, the district judge denied Peterson's
dispositional departure motion and sentenced him to 52 months in prison with lifetime
postrelease supervision.

On Peterson's appeal to the Court of Appeals, the panel relied on State v.
Woodward, 288 Kan. 297, 202 P.3d 15 (2009), and held that the prosecutor was not
required to "stand silent at sentencing" and that her statements were permissible to correct
factual misstatements. State v. Peterson, No. 102,198, 2010 WL 3063159, at *3 (2010)
(unpublished opinion). The panel dismissed Peterson's second claim as unpreserved, and
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it determined that it lacked jurisdiction to address his third claim under State v. Johnson,
286 Kan. 824, 190 P.3d 207 (2008). Peterson, 2010 WL 3063159, at *4-5.

The Court of Appeals panel did not focus explicitly on the prosecutor's question to
Barnett about Peterson's honesty or her statement to the sentencing court that "Mr.
Peterson wasn't being honest with the evaluator about what his involvement was in this
particular case or in his other case, and I think that should be considered by the court that
he cannot or will not address his looking at child pornography or desire to look at child
pornography."

This court granted Peterson's petition for review.

DISCUSSION

An allegation that the State breached a plea agreement presents a question of law
over which this court exercises unlimited review. State v. Antrim, 294 Kan. 632, 634, 279
P.3d 110 (2012).

A plea agreement is a contract between the State and the accused, and the
exchanged promises must be fulfilled by both parties. See Santobello v. New York, 404
U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). "An expectation inherent in all
plea agreements is that each party will honor the terms of the agreement." Woodward,
288 Kan. at 300 (citing State v. Boley, 279 Kan. 989, 992, 113 P.3d 248 [2005]). The
State's breach of a plea agreement denies the defendant due process. See Santobello, 404
U.S. at 265-67 (Douglas, J., concurring); State v. Wills, 244 Kan. 62, 65, 765 P.2d 1114
(1988) (citing Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437
[1984]); State v. Foster, 39 Kan. App. 2d 380, Syl. ¶ 1, 180 P.3d 1074, rev. denied 286
Kan. 1182 (2008). "If the State fails to perform its obligations under a bargained plea
7



agreement, then the court must decide whether justice requires that the promise be
fulfilled or whether the defendant should have the opportunity to withdraw his or her
plea." Woodward, 288 Kan. 297, Syl. ¶ 2.

"[A]pplication of fundamental contract principles is generally the best means to
fair enforcement of a plea agreement, as long as courts remain mindful that the
constitutional implications of the plea bargaining process may require a different analysis
in some circumstances." State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 (2010).

In Woodward, defendant David Woodward agreed to plead guilty to kidnapping,
two counts of sexual exploitation of a child, rape, indecent liberties with a child, and
felony murder in connection with the killing of a 5-year-old child and the sexual
molestation of an 8-year-old child. In exchange, the State agreed to recommend a
particular sentence, and it did so at the sentencing hearing. In addition to making the
recommendation, however, the prosecutor reminded the judge of the heinous nature of
the offenses, and the losses suffered by the victims' families. The prosecutor also
attempted to rebut the assertion that the child's killing was accidental. The district judge
imposed a sentence that exceeded the recommended sentence, and Woodward claimed on
appeal that the district court's decision was attributable to the manner in which the
prosecutor presented the recommendation at the hearing.

This court held:

"The State can breach a plea agreement by effectively arguing against the
negotiated sentencing recommendation. However, if the State actually makes the
sentence recommendation that it promised, the prosecutor's further comments in support
of the recommended sentence do not breach the plea agreement so long as the comments
do not effectively undermine the recommendation." Woodward, 288 Kan. 297, Syl. ¶ 3.

8



We reasoned that the recommended sentence was not the minimum the court could
impose, and the State was "free to argue why the recommended sentence was also the
most appropriate sentence to impose under the circumstances." 288 Kan. at 302. In our
view, the prosecutor had "directly tailored" her arguments to address the defense attempt
to portray Woodward in a favorable light, and the plea agreement "did not require the
prosecutor to ignore the defense's attempts to minimize Woodward's culpability." 288
Kan. at 302.

In this case, the Court of Appeals determined that Peterson's situation was similar
to that in Woodward. Peterson, 2010 WL 3063159, at *3. The panel stated: "Because
factual misstatements were contained in Barnett's report, the State was not required to
stand silent at sentencing." 2010 WL 3063159, at *3. Accordingly, the panel found that
the State did not violate the terms of the plea agreement. 2010 WL 3063159, at *3.

We disagree. Woodward is not directly on point and is not dispositive of this case.
Unlike Woodward, where there was no indication that the State was required to stand
silent at sentencing, Peterson's plea agreement did so require. In addition, the rationale of
Woodward—that a prosecutor can argue in support of a recommended sentence when a
defendant may receive a lesser sentence—is inapplicable when no recommended
sentence has been agreed upon; when the defendant is requesting the lowest possible
sentence beyond time served; and when the State has explicitly contracted away its right
to argue in favor of any particular sentence.

A review of precedent in Kansas and other jurisdictions reveals three typical plea
agreement promises prosecutors make that govern their conduct at sentencing: (1) a
promise to recommend a mutually agreed upon sentence; (2) a promise to take no
position on a portion or specific aspect of the sentence, e.g., whether consecutive or
concurrent sentences should be imposed; and (3) a promise to remain silent at sentencing.
9



Woodward controls the first type of promise. See State v. Urista, 296 Kan. ___ (No.
103,089, filed this day), slip op. at 12, 17-19. Woodward could arguably be extended to
the second type, but we need not reach that issue. Woodward does not apply to the third
type, which is the one at issue here and which raises an issue of first impression in this
jurisdiction.

Other courts have considered whether a prosecutor breaches a plea agreement by
speaking at sentencing after agreeing to stand silent or mute. See Colvin v. Taylor, 324
F.3d 583, 590 (8th Cir. 2003) ("[P]rosecutors may sometimes speak even though they
have promised not to, and still not run afoul of Santobello."); Margalli-Olvera v. I.N.S.,
43 F.3d 345, 354 (8th Cir. 1994) (government's failure to remain silent regarding
deportation breached plea agreement in which prosecutor promised "the United States"
would remain silent); United States v. Greenwood, 812 F.2d 632, 634, 635-37 (10th Cir.
1987) (prosecutor's statements about defendant's lack of remorse, need to deter others
from committing same crime breached plea agreement in which government had
promised to remain silent at sentencing); United States v. Bronstein, 623 F.2d 1327, 1330
(9th Cir. 1980) (government's comments regarding alleged unrelated criminal conduct not
directed to any factual misrepresentations made by defendant, constituted breach of plea
agreement); Lee v. State, 506 N.E.2d 37, 37-38 (Ind. 1987) (State did not breach plea
agreement by describing victim in favorable terms to correct misstatement of fact when
court, defense counsel described victim as "drug dealer"); State v. King, 576 N.W.2d 369,
370 (Iowa 1998) (State breached plea agreement promise to remain silent at sentencing
by requesting court follow PSI recommendation); Burroughs v. State, 30 Md. App. 669,
674, 354 A.2d 205 (1976) (prosecutor breached agreement to remain silent at sentencing
by saying, "'Your Honor, the State considers this to be a most serious case'"); State v.
Sidzyik, 281 Neb. 305, 311, 313, 795 N.W.2d 281 (2011) ("The failure of the State to
remain silent in violation of a plea agreement is a material breach."; State breached plea
agreement promise to remain silent by informing court that "'[t]he State's position is
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stated in the PSI and we would submit on the PSI.'"); Sullivan v. State, 115 Nev. 383, 388
n.4, 990 P.2d 1258 (1999) (promise to remain silent at sentencing does not require State
to stand mute in face of factual misstatements, withhold relevant information from court);
State v. Murnahan, 117 Ohio App. 3d 71, 76-77, 689 N.E.2d 1021 (1996) (prosecutor
breached plea agreement requirement to remain silent by arguing for maximum
sentence); Heiligmann v. State, 980 S.W.2d 713, 714-15 (Tex. App. 1998) (State's use of
rebuttal witness to rebut defendant's effort to contest statements in PSI report did not
violate plea agreement in which State agreed to remain silent); State v. Moederndorfer,
141 Wis. 2d 823, 832, 416 N.W.2d 627 (Wis. App. 1987) ("[A]n agreement for the
prosecution's silence at sentencing is not violated when the prosecutor merely corrects
inaccurate information given to the trial court."); Jackson v. State, 902 P.2d 1292, 1294
(Wyo. 1995) (State did not breach plea agreement by relating information to court about
"near altercation" involving defendant that occurred after PSI report completed but before
sentencing).

In State v. Williams, 249 Wis. 2d 492, 518-19, 637 N.W.2d 733 (2002), the
Wisconsin Supreme Court identified a "fine line" that the State must walk in an effort to
"balance its duty to convey relevant information to the sentencing court against its duty to
honor the plea agreement." According to the court, a prosecutor may not agree as part of
a plea agreement to keep relevant information from the sentencing judge, as such an
agreement is against public policy. Williams, 249 Wis. 2d at 518-19 ("This rule is
intended to protect the integrity of the sentencing process by ensuring that the court
charged with determining the sentence is not intentionally deprived of relevant
information concerning the accused at the time of sentencing."). We recognized a similar
duty in State v. Johnson, 258 Kan. 100, 107, 899 P.2d 484 (1995) ("A less than truthful
soft pedaling or whitewashing of the extent of defendant's participation in stating the
facts to the court would have been inappropriate.").

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Notwithstanding its duty to the court, however, the State is free to negotiate away
any right it may otherwise have as part of a plea agreement. See United States v. Block,
660 F.2d 1086, 1091-92 (5th Cir. 1981) ("As part of a plea agreement, the State is free to
negotiate away any right it may have to recommend a sentence."). And several
jurisdictions recognize that a prosecutor's failure to remain silent in violation of a plea
agreement is a material breach. See, e.g., Sidzyik, 281 Neb. at 311-14; State v. Manke,
230 Wis. 2d 421, 424-25, 602 N.W.2d 139 (Wis. App. 1999) (prosecutor materially
breached plea agreement promise to remain silent by stating, "'I think [Manke is] a time
bomb ready to explode, incarceration is the only way we can protect this community. . . .
I would ask that the Court incarcerate [Manke].'").

Yet, a promise to remain silent at sentencing has limits. It does not require a
prosecutor to stand silent in the face of factual misstatements or to withhold relevant
information from the court. See Sullivan, 115 Nev. at 388 n.4 ("[E]ven where the [S]tate
has agreed to stand silent or make no recommendation, it may nonetheless correct factual
misstatements and provide the court with relevant information that is not in the court's
possession." [Emphasis added.]). If, for example, a defendant presents witnesses at a
sentencing hearing, the State's promise to remain silent is not breached when it cross-
examines the witness "to correct misimpressions created by [his or her] testimony."
Sanders v. State, Nos. 04-99-00262-CR, 04-99-00263-CR, 2000 WL 84417, at *1 (Tex.
App. 2000) (unpublished opinion) (citing Heiligmann, 980 S.W.2d at 715) (State did not
breach promise to remain silent at sentencing by calling two rebuttal witnesses to attest to
truthfulness of statements in PSI report after defendant testified report was untrue).
Absent factual misstatements, a prosecutor who has agreed to remain silent at sentencing
is not free to emphasize information already in the court's possession. See Colvin, 324
F.3d at 591 (Heaney, J., dissenting) (quoting United States v. Mondragon, 228 F.3d 978,
980 [9th Cir. 2000]) ("'Because the prosecutor's comments did not provide the district
judge with any new information or correct any factual inaccuracies, the comments could
12



have been made for only one purpose: to influence the district court to impose a harsher
sentence than that suggested by appellant's counsel.'").

At least one jurisdiction has held that a prosecutor who has agreed to remain silent
at sentencing also may alert the court to a defendant's conduct occurring between the
presentence investigation and the sentencing hearing. See Jackson, 902 P.2d at 1294
(State did not breach plea agreement promise to stand silent by relating information about
"near altercation" involving defendant between completion of PSI report and sentencing;
prosecutor under duty to ensure court has complete and accurate information concerning
defendant).

In a Woodward situation, the prosecutor is not required to ignore defense attempts
to minimize culpability. See 288 Kan. at 302. But, when the State has contracted away
the right to speak at sentencing, it no longer has free rein to argue against such efforts. If
the defendant's minimization or other tactics rise to the level of misimpressions, through
witness testimony or otherwise, the prosecutor has a duty to the court to correct such
misimpressions. But that duty is limited in scope and cannot simply supply an end-run
around the prosecutor's plea agreement promise to remain silent. See United States v.
Moncivais, 492 F.3d 652, 662 (6th Cir. 2007) ("'The Santobello rule "proscribes not only
explicit repudiation of the government's assurances, but must in the interests of fairness
be read to forbid end-runs around them."'"); cf. State v. Ross, 166 Ariz. 579, 582-83, 804
P.2d 112 (Ariz. App. 1990) (State agreed to make no sentencing recommendation;
prosecutor's "rigorous[]" cross-examination of defense witnesses, challenge to defense
assertion that defendant wavered before commission of crime "breached the 'spirit of the
inducement'" to plead).

Here, the prosecutor's questions to Barnett about his knowledge of the facts of this
case and Peterson's prior conviction were appropriate in order to correct misimpressions
13



created by Barnett's testimony and to ensure that the court had complete and accurate
information concerning the defendant. See Block, 660 F.2d at 1090-92. Barnett testified
that he formed his professional opinion based on the factual information provided by
Peterson. This information was certainly incomplete and, in some ways, inaccurate. The
total picture, although already largely known to the district court, was not painted through
cross-examination simply to influence the court to impose a harsher sentence. See
Mondragon, 228 F.3d at 980. There was a legitimate alternate purpose, which was
consistent with the prosecutor's duty to the court, to provide Barnett with additional
information so that he could fairly reevaluate his professional opinion.

That being said, the prosecutor trod very close to what our fellow judges in
Wisconsin recognized as a "fine line" during her cross-examination of Barnett, veering
dangerously toward general impeachment of the expert's testimony. See Williams, 249
Wis. 2d at 518-19. We caution future prosecutors, subject to State agreements to stand
silent at sentencing, to avoid inserting disguised argument through cross-examination of a
witness.

On the other hand, we are unpersuaded by Peterson's argument that Barnett's
testimony did not contain any factual misstatements. Peterson asserts that "disagreements
about what the facts were do not amount to misstatements of fact." We have more than
mere disagreements about the facts here. At the preliminary hearing, there was no
disagreement about the number of photographs found, the fact that Peterson viewed child
pornography on his work computer, or the search terms he employed to reach the
photographs. Nor was there any disagreement about Peterson's prior convictions on two
counts of aggravated sexual battery. "[A] deliberate omission is often equal to an actual
misstatement," State v. Lockett, 232 Kan 317, 319, 654 P.2d 433 (1982), and Peterson's
omission of relevant facts to Barnett constituted factual misstatements by proxy.

14



We therefore hold that the prosecutor's questions challenging the factual basis for
Barnett's opinion were appropriate and did not violate the plea agreement.

Had the prosecutor been content with cross-examination, Peterson would leave
this court empty-handed. But she was not. She polished off her closing comments to the
court by saying Peterson's dishonesty to Barnett "should be considered by the court that
he cannot or will not address his looking at child pornography or desire to look at child
pornography." This went too far. The comment was aimed directly to Peterson's
likelihood of recidivism, the main issue before a sentencing judge considering a
dispositional departure to probation, and it violated the State's plea agreement promise to
stand silent. Cf. Johnson, 258 Kan. at 107 ("editorializing" on facts may be improper
when State agrees to take no position on portion of sentence); United States v. Villa-
Vazquez, 536 F.3d 1189, 1197-98 (10th Cir. 2008) (government not excused from
obligations under plea agreement even though court requested its view on sentencing;
"The government should have explained to the court that it had made promises in the plea
agreement and then limited itself to what was permitted by Paragraph 10 of the plea
agreement—namely, a 'legally neutral' and 'non-argumentative' presentation of facts.").

Citing Court of Appeals' precedent, the State's brief may intimate that the standard
for constitutional harmless error may apply when the State has breached a plea
agreement. But the State fails to pursue such an argument. As the party benefitting from
violation of Peterson's constitutional right to due process, it has failed to "prove[] beyond
a reasonable doubt that the error complained of . . . did not affect the outcome of the trial
in light of the entire record, i.e., where there is no reasonable possibility that the error
contributed" to the sentence. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012); see also Urista, 296 Kan. ___, Syl. ¶ 6
(breach of plea agreement harmless error only if court can say beyond reasonable doubt
15



State's promise had little, if any, influence on defendant's decision to enter into plea
agreement).

Resentencing before a different judge is the typical remedy for the State's breach
of a plea agreement. See United States v. VanDam, 493 F.3d 1194, 1206 (10th Cir. 2007);
Foster, 39 Kan. App. 2d at 390. When a defendant does not seek to withdraw his or plea,
"the less drastic remedy of resentencing appears to be most apt." VanDam, 493 F.3d at
1206.

Peterson seeks specific performance of the plea agreement at a resentencing
hearing. Having concluded that the State breached the plea agreement, we vacate
Peterson's sentence and remand for resentencing in front of a different judge, where the
State will have the opportunity fulfill its obligations under the plea agreement.

CONCLUSION

For all of the reasons detailed above, we reverse the judgments of the Court of
Appeals and the district court, vacate Peterson's sentence, and remand this case to the
district court for further proceedings consistent with this opinion.

MORITZ, J., not participating.
ERNEST L. JOHNSON, District Judge, assigned.