United States of America v. Desmond Aaron Greene

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 07-5060
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESMOND AARON GREENE,
Defendant - Appellant.
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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)
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Submitted: September 25, 2008 Decided: December 12, 2008
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Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
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Vacated and remanded by unpublished per curiam opinion.
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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.
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Unpublished opinions are not binding precedent in this circuit.

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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.

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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
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
2See 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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