UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                     No. 95-5534

CLAUDE WILLIAMS, III,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-93-26-V)

Argued: March 7, 1997
Decided: March 31, 1997

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL

ARGUED: Jesse James Waldon, Jr., JESSE J. WALDON, JR., P.A.,
Matthews, North Carolina, for Appellant. Karen E. Eady, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,
Gretchen C.F. Shappert, Assistant United States Attorney,
Charlotte,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In a plea agreement reached between Claude Williams, III, and the
government in September 1994, Williams agreed to plead guilty to
one cocaine conspiracy count. The agreement included Williams'
promise to cooperate with the government and the government's
promise to "make a motion for downward departure pursuant to
[U.S.S.G.] § 5K1.1 or [Fed. R. Crim. P.] 35 as appropriate" if,
after
Williams' assistance had been "completed," the government deter-
mined, in its sole discretion, that Williams had"rendered
substantial
assistance to the government."

At sentencing, Williams provided the court with evidence that he
cooperated with the government and that his cooperation resulted in
the arrest of two persons. The government, however, elected not to
move for a downward departure because, as the government attorney
explained:
     I'm not making a 5K, I'm informing the Court I['ll] possibly
     make a Rule 35 later based upon whether his cooperation
     has in fact borne fruit, but I don't think we should allow
     someone to make a deal and then threaten a witness .

The government was referring to an incident where Williams, while
visiting the home of a family member, became involved in a verbal
altercation with the girlfriend of a co-defendant who was also a
possi-
ble witness against him and allegedly threatened her. At the time,
Williams' bond was revoked and Williams was taken into custody.
This obstruction of justice allegedly occurred in January following
the
entry of the plea agreement between Williams and the government in
September 1994. As the government's attorney stated,"The plea
agreement was entered, I believe, in September, the obstructionist
behavior occurred in January." Recognizing the government's com-

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plete discretion to make the § 5K1.1 downward departure motion, the
district court stated at sentencing, "Well, I think that answers
the
question in the sense that it does not appear that it's a breach
[by the
government] of the plea agreement involved." The court then pro-
ceeded to find an offense level of 33 and to sentence Williams to
210
months imprisonment.
On appeal, Williams contends that the government breached its
plea agreement in refusing to recommend a downward departure. The
government, on the other hand, has moved to dismiss the appeal
based on Williams' agreement in the plea agreement to waive appeal.
The government agrees, however, that its motion depends on its not
having breached the plea agreement.

As it turns out, the obstruction of justice did not occur after the
plea agreement as argued by the government and therefore could not
have been a basis for its refusal to file a § 5K1.1 motion to
depart
downward. The obstruction of justice occurred in January 1994, over
one-half year before the plea agreement, and the government now
agrees it was aware of the obstruction at the time the plea
agreement
was signed.
During oral argument, the government conceded that the govern-
ment's trial attorney had simply been mistaken about the sequence
of
events. But we need not rely only on that concession. The docket
also
supports the correct sequence. It shows that Williams' bond was
revoked on January 24, 1994. The plea agreement was entered some
months later, having been signed by Williams on September 9, 1994,
and by the government on September 16, 1994.

Because the district court sentenced Williams based on mistaken
information, we vacate his sentence and remand the case for resen-
tencing. At resentencing, the district court can determine whether
the
government intends to move for a downward departure under
U.S.S.G. § 5K1.1, whether it is required to do so, and whether its
fail-
ure to do so would result in a breach of the plea agreement.

VACATED AND REMANDED
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