US v. Desmond Greene

Filing 920081212

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ________________ No. 07-5060 ________________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 ______________ Vacated and remanded by unpublished per curiam opinion.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 _______________ Unpublished opinions are not binding precedent in this circuit.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 on in support Five of for an eight-level to offense cause level

enhancement

Count

threatening

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

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.

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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 We dispense with oral

decision in this case is denied as moot.

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

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)). 3

2