UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-6191

AMBROSE WANRIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-93-464-FJM, CA-97-4041-FJM)

Submitted: August 25, 1998

Decided: October 14, 1998

Before WILKINS and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Ambrose Wanrin, Appellant Pro Se. Lynne Ann Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Ambrose Wanrin appeals from the district court's order dismissing
as untimely his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)
motion in which he asserts that the government breached the plea
agreement. Because the district court failed to consider Wanrin's con-
tentions that his motion was timely filed following entry of the
amended judgment and commitment order and that he only recently
discovered the government's alleged breach, we vacate the district
court's order and remand this case for a determination of whether the
motion was timely filed.

Wanrin pled guilty to conspiracy to import heroin into the United
States, in violation of 21 U.S.C. § 963 (1994). As part of the plea
agreement, although noting the government's limited ability to affect
events in foreign countries, the government agreed to "use its good
faith efforts to alert and assist in the protection of any members of Mr.
Wanrin's family should a danger arise to them as a result of his coop-
eration with the government." On November 17, 1995, the district
court sentenced Wanrin to fifty-one months imprisonment. On the
government's Fed. R. Crim. P. 35(b) motion, the district court
reduced Wanrin's sentence to forty-one months in light of his sub-
stantial assistance. The amended judgment and commitment order
was entered on August 21, 1997.

On December 1, 1997, Wanrin moved for specific enforcement of
the plea agreement or to vacate his conviction pursuant to 28
U.S.C.A. § 2255. Wanrin asserted that on May 20, 1996, in retaliation
for his cooperation with the government, his wife and children were
violently attacked and assaulted. Wanrin learned of this incident in
June 1996 and informed the government of the attack on his family.
Wanrin was subsequently taken to Kentucky to testify for the govern-
ment in another criminal prosecution. The government did not warn
his family in Nigeria about his further cooperation and the potential
for additional danger resulting from this cooperation. Wanrin then
wrote a series of letters to the government and to his attorney attempt-
ing to obtain protection for his wife and children in Nigeria. He

                     2
claimed that it was not until October 1997 that he realized that the
government breached the plea agreement.

The district court dismissed the motion as untimely, noting that
Wanrin was sentenced on November 19, 1995, and this motion was
not filed until December 1, 1997. Because the § 2255 motion was not
filed within one year of Wanrin's sentence, the court concluded that
the motion was untimely.

Section 2255 requires that a motion under that section be filed
within one year from the latest of four specified times, including:

          (1) the date on which the judgment of conviction becomes
          final;

***

          (4) the date on which the facts supporting the claim or
          claims presented could have been discovered through
          the exercise of due diligence.

28 U.S.C.A. § 2255.

Wanrin asserts that the motion was timely filed because it was filed
within one year from the entry of his amended judgment and commit-
ment order, and because he did not discover the facts underlying the
claim until within one year of filing his motion. The district court did
not consider these claims, because they were asserted in response to
the government's contention that the motion was untimely, and Wan-
rin's response was filed after the district court's order dismissing the
motion. Because Wanrin did not receive notice of the district court's
intent to dismiss his motion, see Ricketts v. Midwest Nat'l Bank, 874
F.2d 1177, 1184-85 (7th Cir. 1989); see also United States Dev. Corp.
v. Peoples Fed. Sav. & Loan Ass'n, 873 F.2d 731, 736 (4th Cir. 1989)
(regardless of the merits, notice and opportunity to respond required
prior to sua sponte summary judgment); Roseboro v. Garrison, 528
F.2d 309, 310 (4th Cir. 1975), we grant a certificate of appealability,
vacate the judgment of the district court, and remand for further pro-
ceedings. We deny Wanrin's motion for appointment of counsel and

                    3
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

VACATED AND REMANDED

                    4
