           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 26, 2007
                                     No. 05-41866
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

GABRIEL MARTINEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:02-CR-804-2


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Gabriel Martinez appeals the sentence imposed following his guilty-plea
conviction for conspiracy to engage in unlawful racketeering conduct in relation
to a Racketeer Influenced and Corrupt Organization (RICO) and conspiracy to
receive firearms after having previously been convicted of a felony. Martinez
argues that the Government breached the plea agreement by failing to
recommend a 140-month sentence, as it had promised in the plea agreement.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 05-41866

      The record establishes, and the Government concedes, that it breached the
plea agreement. Martinez’s sentence is vacated and the case is remanded for
resentencing before a different district court judge. See United States v. Saling,
205 F.3d 764, 768 (5th Cir. 2000).
      SENTENCE VACATED; CASE REMANDED FOR RESENTENCING




                                        2
