                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4740


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KENNETH MICHAEL HOFFMAN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:07-cr-00341-FL-1)


Submitted:    June 3, 2009                  Decided:   June 25, 2009


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Richard Croutharmel, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kenneth Michael Hoffman appeals his 134-month sentence

following a guilty plea to one count of possession with intent

to distribute a quantity of cocaine, in violation of 21 U.S.C.

§ 841(a)(1)      (2006);       he     does       not     challenge            his       concurrent

120-month      sentence       upon    his     guilty          plea      to     one       count     of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2006).                       The Government concedes--and

our review of the record confirms--that the Government breached

the   terms    of     its    plea    agreement         with    Hoffman        by        opposing    a

downward departure for acceptance of responsibility under U.S.

Sentencing      Guidelines       Manual      (“USSG”)         §       3E1.1    (2007).           The

parties agree that Hoffman’s sentence should be vacated and the

case remanded for resentencing.

              Accordingly, we vacate the sentence and remand to the

district      court    for    resentencing         before         a    different          district

judge. *     See United States v. McQueen, 108 F.3d 64, 66 (4th Cir.

1997)      (directing       remand    for    resentencing             before        a    different

sentencing      judge       after     breach      of      plea         agreement);          United

States v. Peglera, 33 F.3d 412, 415 (4th Cir. 1994) (same).                                        In

view of this resentencing, we decline to address whether the

      *
        This result is in no way a reflection on the able
sentencing judge, but is dictated by our prior precedent in such
cases.



                                             2
extent of the reduction of Hoffman’s sentence pursuant to USSG

§ 5K1.1 was an abuse of discretion.          We grant Hoffman’s motion

to withdraw the first argument contained in his appellate brief.

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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