                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4180


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DERRICK WAYNE WELLS, JR., a/k/a Jo Jo,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:13-cr-00033-GMG-JES-3)


Submitted:   December 12, 2014            Decided:   January 15, 2015


Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Shawn R. McDermott, MILLS MCDERMOTT CRIMINAL LAW CENTER,
Martinsburg,  West  Virginia,  for   Appellant.    William  J.
Ihlenfeld, II, United States Attorney, Jarod J. Douglas,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Derrick Wayne Wells, Jr., pleaded guilty pursuant to a

plea    agreement   to    one   count   of   possession   with   intent   to

distribute cocaine base, in violation of 18 U.S.C. § 841(a)(1),

(b)(1)(C) (2012).        The charge came as a result of a vehicle stop

in which Wells was the driver of the stopped car.                 During a

search of the car, police seized 2.17 grams of crack cocaine.

In the plea agreement, Wells agreed to be completely forthright

and truthful with law enforcement.           The agreement also provided

that:

       Nothing contained in any statement or any testimony
       given by Mr. Wells pursuant to Paragraph 5 will be
       used against him as the basis for any subsequent
       prosecution.   It is understood that any information
       obtained from Mr. Wells in compliance with this
       Agreement will be made known to the sentencing Court.
       However, pursuant to Guideline 1B1.8, such information
       may not be used by the Court in determining Mr. Wells’
       applicable guideline range.

(Joint Appendix at 48).         Under U.S. Sentencing Guidelines Manual

(“USSG”) § 1B1.8(a):

       Where a defendant agrees to cooperate with the
       government   by    providing  information   concerning
       unlawful activities of others, and as part of that
       cooperation agreement the government agrees that self-
       incriminating information provided pursuant to the
       agreement will not be used against the defendant, then
       such information shall not be used in determining the
       applicable guideline range, except to the extent
       provided in the agreement.

Wells contends that the Government breached the plea agreement

by using information at sentencing that he provided during a

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debriefing and that such information was used to determine the

applicable Guidelines sentence.                We agree, and we vacate the

sentence and remand for resentencing.

          A party alleging that the Government breached a plea

agreement bears the burden of showing by a preponderance of the

evidence that a breach occurred.                 United States v. Snow, 234

F.3d 187, 189 (4th Cir. 2000).               Where a party raised the issue

of breach in the district court, 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, 633 F.3d 262, 267 (4th Cir. 2011) (internal

quotation marks omitted).

          At      sentencing,    Wells       objected    to    the    drug    quantity

attributed   to     him   and   enhancements      to    the    offense       level   for

firearm possession and keeping a premises for the manufacturing

or distribution of crack cocaine.               The Government presented the

testimony of Timothy Williams, Wells’ co-defendant, in order to

show that the two men had a crack distribution ring that sold

drugs from an apartment both men had rented.                          On the stand,

Williams proved to be hostile witness.                 During the course of the

examination, the Government asked Williams if he knew that Wells

stated that Williams gave Wells the 2.17 grams of crack cocaine

found in the vehicle.            Williams denied the accusation.                     The

information implicating Williams as the person who gave Wells

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the crack cocaine became known to the Government during Wells’

interview with law enforcement.                    Pursuant to the terms of the

plea       agreement,         Wells      was     justified     in        believing     that

information        he    gave    during    a     debriefing    implicating        Williams

would not be used against Wells in determining his own sentence.

              The Government contends that the district court could

not    have   used       this    information       improperly       to   determine     drug

quantity, because Wells had pleaded guilty to possessing the

drug amount found in the vehicle.                   However, the Government used

the information to impeach Williams, whose testimony did not

support      the   Government’s          position    that     Wells      should   be   held

accountable        for    a     higher    drug     amount,    for     possession       of   a

firearm, and for maintaining a premises for manufacturing and

distributing crack cocaine.                Because the Government successfully

impeached Williams, the court did not rely upon his testimony to

determine the applicable Guidelines sentence.                         We conclude that

this was clearly an improper use of Wells’ protected statements. *




       *
       We also conclude that the Government improperly used
Wells’ protected statement that he and Williams went to a
shooting range.    However, this particular error, unpreserved
below, does not entitle Wells to relief.      Under plain error
review, we conclude that the Government’s breach in this regard
did not affect Wells’ substantial rights. See United States v.
Dawson, 587 F.3d 640, 645 (4th Cir. 2009). At resentencing, we
caution the Government against revealing this information unless
it is for a proper purpose. See USSG § 1B1.8(b).


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            Accordingly, while we affirm the conviction, because

the    Government    breached        the       plea        agreement      by   revealing

protected information during the sentencing hearing, we vacate

the sentence and remand for resentencing.                      Because the original

sentencing judge “cannot reasonably be expected to erase the

[improper    information]       from           his       mind,”     we     direct      that

resentencing   be    conducted       before          a   different       district   court

judge.    See United States v. Nicholson, 611 F.3d 191, 218 (4th

Cir. 2010) (internal quotation marks omitted).                       We dispense with

oral   argument     because    the    facts          and    legal    contentions       are

adequately   presented    in    the    materials            before     this    court   and

argument would not aid in the decisional process.

                                                                     AFFIRMED IN PART,
                                                                      VACATED IN PART,
                                                                          AND REMANDED




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