                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4026


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EMMANUEL ELLIS KELLER, a/k/a Mayo, a/k/a Manyo,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00061-FDW-2)


Submitted:   February 23, 2011            Decided:   April 11, 2011


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne
M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Emmanuel       Ellis    Keller       appeals    the       sentence    imposed

following his guilty plea, pursuant to a written plea agreement,

to     conspiracy       to     distribute         and    possess        with     intent      to

distribute fifty grams or more of crack cocaine, 500 grams or

more    of    cocaine,       marijuana,      and   Ecstasy,      in     violation       of   21

U.S.C. §§ 841(a)(1), (b)(1), 846 (2006).                           The plea agreement

provided      that      neither      party    would       seek     an    enhancement         or

reduction from the applicable Guidelines range.                             We vacate the

district court’s judgment and remand for further proceedings.

              The     presentence          investigation         report         recommended

enhancements based on Keller’s possession of a firearm and role

in the offense.            Keller objected to the sentencing enhancements

as violative of the plea agreement.                       At the sentencing court’s

direction,      the     Government        offered       corroborating          evidence      of

Keller’s possession of a firearm.                       The Government also offered

evidence       demonstrating          Keller’s          leadership        role     in        the

conspiracy.             Although     the     Assistant       United      States    Attorney

(AUSA)       stressed      that    the     Government        was      not      seeking       the

enhancements,         he     summarized      the    evidence       in    favor     of     each

enhancement, as follows:

       First, as to being a leader, . . . it’s very clear
       from all co-conspirators that Mr. Keller was a ranking
       member of the Hidden Valley Kings . . . .



                                              2
     [H]e clearly has a leadership role within the gang.
     That’s pretty much undisputed.

     As to the shooting, Your Honor, the evidence is pretty
     strong on this, Your Honor.       First, we have Mr.
     Bridges saying he always carries a 9mm with him. And,
     of course, Your Honor, as I stated during the last
     sentencing, we would not rely on that alone, but in
     this case it is corroborated by independent evidence.
     Evidence, that I might add, Your Honor, has been
     developed over the prosecution of this case before and
     after the Plea Agreement with Mr. Keller.

     Over   the  investigation,  it’s             pretty  clear  from
     multiple sources, including the              victim [that Keller
     was involved in shootings].

     So the evidence is certainly beyond a preponderance of
     the evidence in this case that Mr. Keller possessed a
     gun in relation to drug trafficking, as you heard from
     Mr. Bridges’ debrief that he always carries it and
     he’s a drug dealer, and from the fact that they had a
     drug dispute . . . and the shooting occurred as a
     result.

     So I believe that the totality of the evidence beyond
     a preponderance of the evidence shows that Mr. Keller
     did possess a gun in relation.   There was a nexus to
     the drug dealing. And, therefore . . . the two points
     probably should be upheld.

          Defense        counsel   again      objected,    arguing   that     the

AUSA’s   statements          advocated        imposition     of      sentencing

enhancements   in   violation      of   the   plea   agreement.      The    court

found ample evidence supported the enhancements and specifically

ruled that the Government did not violate the plea agreement “by

merely providing the evidence supporting the Probation Office’s

recommendation”     of    the   enhancements.        The   court   applied   the

enhancements and sentenced Keller to 293 months of imprisonment.

Keller noted a timely appeal.

                                        3
            The Government has conceded its failure to uphold the

spirit of the plea agreement, and the parties have jointly moved

to remand for resentencing on Keller’s allegations of sentencing

error,    breach         of       the     plea        agreement,        and    prosecutorial

misconduct.       The Government alternatively requests dismissal of

the   appeal     based       on    Keller’s       waiver       of    the    right    to    appeal

included in the plea agreement.

            Absent       a    breach         of   the    plea        agreement,      an    appeal

waiver should be enforced if the record shows the waiver is

valid and the challenged issue falls within the scope of the

waiver.     United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005);    United    States         v.    Cohen,       459     F.3d    490,    495    (4th      Cir.

2006).     “When a claim of breach of a plea agreement has been

preserved, we review the district court's factual findings for

clear    error     and       its    application          of    principles       of    contract

interpretation de novo.”                 United States v. Lewis,                     F.3d         ,

2011 WL 310805 at *3 (4th Cir. 2011) (internal quotation marks

and   citation      omitted).                Because     Keller       preserved      appellate

review by objecting to the sentencing enhancements, our review

is for harmless error.              Id.

            A concession of error on the part of the Government

does not end this court’s inquiry, as this court is “not at

liberty    to      vacate          and       remand      for        resentencing          on   the

Government’s       concession           of    error     alone.”            United    States     v.

                                                  4
Rodriguez, 433 F.3d 411, 415 n.6 (4th Cir. 2006).                      Rather “our

judicial     obligations      compel   us     to   examine    independently      the

errors confessed.”          United States v. Robinson, 460 F.3d 550, 558

n.7   (4th   Cir.    2006)    (internal       quotation    marks   and    citations

omitted).     Courts have a vital interest in assuring that plea

agreements are adhered to and handled properly.                    Lewis, 2011 WL

310805 at *4.       “When   a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must

be fulfilled.”         Id. (quoting Santobello v. New York, 404 U.S.

257, 262 (1971)).

             Despite     reassurances         to   the     contrary,      the   AUSA

specifically advocated for application of the enhancements when

he commented in detail on the strength of evidence supporting

the enhancements.           We accordingly conclude that the Government

breached the plea agreement.           That the breach may have occurred

while complying with the court’s directive for presentation of

corroborating evidence does not lessen its impact.                       Santobello,

404 U.S. at 262.        Because Keller did not secure the benefit to

which   he   was    entitled    when   the     Government     sought     sentencing

enhancements, which the court applied, we find that the error

affected     Keller’s    substantial        rights   and     was   not    harmless.

Lewis, 2011 WL 310805 at *7.              We therefore do not enforce the

appeal waiver.      Id. at *7 n.8.

                                          5
          Accordingly,      we   grant     the   parties’    joint   motion    to

remand, vacate the sentence, and remand for resentencing.                      We

deny Keller’s motion for remand based on the Fair Sentencing Act

of 2010, Pub. L. No. 111-220, 124 Stat. 2372.                We dispense with

oral   argument   because     the   facts    and    legal    contentions      are

adequately   presented      in   the   material     before    the    court    and

argument would not aid the decisional process.



                                                       VACATED AND REMANDED




                                       6
