UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

(2000) (Count One),

and obstruction of justice, in violation of

(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,

(4th Cir. 1994) (citing United States v. Brown,

(4th Cir. 1974)).

3