                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                       _______________________

                            No. 01-20381
                       _______________________


                      UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 versus

                          AIBIOKUNLA UZEBU,
                                                  Defendant-Appellant.

_________________________________________________________________

            Appeal from the United States District Court
        for the Southern District of Texas, Houston Division
                             00-CR-347-1
_________________________________________________________________
                            July 11, 2002


Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

          Aibiokunla Uzebu was indicted on two counts of bank fraud

and three counts of making false statements. Uzebu pled guilty to one

count of making false statements, in violation of 18 U.S.C. § 1001.

In consideration for Uzebu’s guilty plea, the Government agreed to

move to dismiss the four remaining counts.    Uzebu was sentenced to 27

months’ imprisonment and 3 years’ supervised release and ordered to

pay $61,283.74 in restitution.

          Uzebu contends that the Government breached the written

plea agreement when, at sentencing, the Government failed to request



     *
           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this opinion should not be published and is not precedent except under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.
a dismissal of the four remaining counts.            “We consider whether the

Government    breached    the   plea   agreement    despite   an   appeal-waiver

provision in the plea agreement.”            United States v. Branam, 231 F.3d

931, 931 n.1 (5th Cir. 2000).

             The Government concedes that it did not request dismissal

of the remaining counts, that it breached the plea agreement, and that

the district court did not dismiss the four remaining counts. The

Government insists, however, that Uzebu’s substantial rights have not

been affected by the error because the Government “has foresworn

prosecution of the remaining counts.”            Uzebu believes he is entitled

to have the judgment in this case accurately reflect the terms of the

agreement he reached with the Government.

             When   the   Government     has    materially    breached   a   plea

agreement, this court usually vacates the sentence and remands for

resentencing in accordance with the terms of the agreement.                  See,

e.g., United States v. Valencia, 985 F.2d 758 (5th Cir. 1993).                 In

this case, however, resentencing is not warranted, as neither party

disputes the validity of the conviction on Count Three or the sentence

imposed by the district court.         The only flaw in the judgment is that

it does not indicate that Counts One, Two, Four, and Five were

dismissed at the request of the Government.

             The judgment is therefore AFFIRMED AS MODIFIED.             The case

is REMANDED for the district court to enter a corrected judgment

reflecting a dismissal of the four remaining counts.




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