                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT
                         ________________

                            No. 07-5060
                         ________________


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DESMOND AARON GREENE,

                Defendant - Appellant.

                            ______________

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00169-RJC-1)
                          ______________

Submitted:   September 25, 2008       Decided:   December 12, 2008
                           ______________

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
                         ______________

Vacated and remanded by unpublished per curiam opinion.
                          ______________

David Q. Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
                         _______________

Unpublished opinions are not binding precedent in this circuit.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

               Desmond      Aaron   Greene          appeals    his     21-month       sentence

after pleading guilty to conspiracy to defraud the United States

by    uttering        and       dealing       in         counterfeit        obligations       or

securities, in violation of 18 U.S.C. § 371 (2000) (Count One),

and     obstruction        of    justice,       in       violation      of    18     U.S.C.     §

1512(c)(1) (2000) (Count Five).                      Greene contends the Government

breached the terms of his plea agreement by presenting testimony

and     argument      in    support       of        an    eight-level        offense      level

enhancement      on    Count      Five    for       threatening        to    cause    physical

injury in order to obstruct justice, pursuant to U.S. Sentencing

Guidelines      Manual      (“USSG”)      §     2J1.2(b)(1)(A)          (2006).           Greene

claims the Government agreed to recommend, pursuant to Fed. R.

Crim.     P.   11(c)(1)(B),         an    offense         level   of    14    and     that     it

reasserted this stipulation during the plea hearing. 1

               The    Government          agrees           with      Greene        that       its

presentation of evidence in support of the enhancement after

erroneously representing that the “adjusted offense level” was

also 14 constituted a breach of the agreement.                              In light of the


      1
      Additionally, Greene contends the district court erred in
imposing the enhancement because USSG § 2J1.2(b)(1)(A) requires
a threat to cause injury, not merely an attempt to cause injury.
However, in light of the Government’s concessions, it is not
necessary for the court to address this claim.


                                                2
Government’s concession, without reaching the merits of Greene’s

argument, we vacate Greene’s sentence and remand the case for

resentencing.    Consistent    with   our   past    practice   in   such

circumstances, we remand the case to a different district court

judge for resentencing. 2     Finally, Greene’s motion to expedite

decision in this case is denied as moot.      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




     2
      See United States v. Peglera, 33 F.3d 412, 415 (4th Cir.
1994) (citing United States v. Brown, 500 F.2d 375, 378 (4th
Cir. 1974)).

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