                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4676


UNITED STATES OF AMERICA,

                  Plaintiff – Appellant,

             v.

LINWOOD BATTS, JR.,

                  Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00064-BO-1)


Submitted:    December 29, 2009              Decided:   January 27, 2010


Before TRAXLER,     Chief   Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellant. Kelly L. Greene, GREENE
& WILSON, P.A., New Bern, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In     an       earlier    opinion,          we     vacated     the    sentence      of

Appellee     Linwood         Batts,     Jr.,       for      a     firearm    conviction         and

remanded    for        resentencing.           At     resentencing,          the     Government

moved for an upward departure, but the district court refused to

allow the Government’s motion.                       The Government appeals, arguing

that this refusal was error.                     We agree, and once again vacate

and remand for resentencing.

            As recounted in our earlier opinion, United States v.

Batts,    317     F.    App’x       329,   330       (4th       Cir.   2009)      (No. 08-4179)

(“Batts I”), Batts pled guilty pursuant to a plea agreement to

conspiracy to possess with the intent to distribute cocaine, in

violation of 21 U.S.C. § 846 (2006), and carrying a firearm in

furtherance       of    a    drug     trafficking         crime,       in   violation      of    18

U.S.C. § 924(c) (2006).                The district court sentenced Batts to

57 months’ imprisonment on the drug conspiracy conviction and a

consecutive sentence of 168 months’ imprisonment on the firearm

conviction.        Id.       Batts appealed, claiming that the Government

breached the plea agreement by moving for an upward departure on

the drug conspiracy conviction and that the 168-month sentence

for   the   firearm          conviction,       a      sentence         double     the   84-month

sentence under the Sentencing Guidelines, see U.S. Sentencing

Guidelines      Manual       (“USSG”)      (2007),          was    procedurally         defective

because     the        district       court        failed         to    comply      with    USSG

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§ 4A1.3(a)(4)(B) and to explain adequately its sentence.                             Id. at

330-31.     We held that the Government had not breached the plea

agreement     in    moving       for    an   upward      departure       but      that    the

district court erred by failing to move through the Guidelines’

sentencing    table        and    to    explain    adequately         its    reasons      for

imposing the 168-month sentence.                       Id. at 332.          We therefore

affirmed Batts’ sentence for the drug conspiracy conviction but

vacated the sentence for the firearm conviction and remanded for

resentencing.       Id. at 332-33.

             At resentencing, the Government moved for an upward

departure based on the seriousness of the circumstances of the

offense and to protect the public from further crimes by Batts.

The district court refused to allow the Government’s motion,

reasoning that our opinion in Batts I precluded the granting of

an upward variance on remand.                    It imposed a within-Guidelines

sentence of 84 months’ imprisonment on the firearm conviction,

to   run    consecutive          to    the   57-month        sentence       on    the    drug

conspiracy conviction.

             The    Government         argues     on    appeal    that      the    district

court misconstrued our opinion in Batts I and erred in refusing

to entertain the Government’s motion.                    We agree.       A resentencing

hearing should be conducted de novo unless this court’s mandate

specifically        limits       the   district        court     to   certain       issues.

United     States     v.     Broughton-Jones,           71     F.3d   1143,       1149    n.4

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(4th Cir. 1995); United States v. Smith, 930 F.2d 1450, 1456

(10th Cir. 1991) (concluding that, absent explicit limitations,

an order vacating a sentencing and remanding for resentencing

“directs the sentencing court to begin anew, so that fully de

novo resentencing is entirely appropriate” (internal quotation

marks omitted)); cf. United States v. Cornelius, 968 F.2d 703,

705 (8th Cir. 1992) (“Once a sentence has been vacated or a

finding related to sentencing has been reversed and the case has

been remanded for resentencing, the district court can hear any

relevant evidence on that issue that it could have heard at the

first hearing.”).

          Our opinion in Batts I did not limit or restrict the

scope of our remand for resentencing on the firearm count.                     On

the contrary, we emphasized that the district court retained the

discretion on remand to impose the same sentence or select an

alternate one.       Further, we emphasized that our opinion in Batts

I   “should    not    be   read   as       indicating     any     view   on   the

appropriateness of the sentence imposed.”                Batts, 317 F. App’x

at 332 n.*.

          Our review of the resentencing transcript convinces us

that the district court misunderstood the scope of our mandate.

Accordingly,    we    again   vacate   the     sentence     for    the   firearm

conviction and remand for resentencing.                 We reiterate that we

express no opinion on the substantive appropriateness of the

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sentence   to   be   imposed   on   remand.   We   dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                   VACATED AND REMANDED




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