                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 12 1999
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No. 98-4159
v.                                                   (District of Utah)
                                                  (D.C. No. 98-CR-122-1)
WYATT B. WILLARD,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Wyatt B. Willard appeals from the district court’s entry of judgment and

sentence on his guilty plea to armed bank robbery in violation of 18 U.S.C.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 2113(a) and (d). Willard asserts that the United States breached its plea

agreement when it refused to recommend to the district court a sentence at the

low end of the sentencing range. In its appellate brief, the United States concedes

error and requests that Willard’s sentence be vacated and the case remanded to the

district court for resentencing. Based on the arguments set forth in Willard’s

appellate brief and the United States’ concession of error, this court exercises

jurisdiction pursuant to 28 U.S.C. § 1291, VACATES Willard’s sentence, and

REMANDS the case to the district court for resentencing. Although Willard

disclaims any desire to be resentenced before a different judge, under the

particular facts of this case, we leave that determination to the district court on

remand. See United States v. Brye, 146 F.3d 1207, 1213 (10 th Cir. 1998).

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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