United States v. James Joseph McAndrew

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 25, 2012 No. 11-14795 JOHN LEY Non-Argument Calendar CLERK ________________________

D.C. Docket No. 8:09-cr-00140-RAL-TBM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

JAMES JOSEPH MCANDREW,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 25, 2012)

Before BARKETT, PRYOR and BLACK, Circuit Judges.

PER CURIAM: James Joseph McAndrew appeals his sentence of 720 months of

imprisonment for knowingly possessing child pornography that was transported in

interstate commerce, 18 U.S.C. § 2252A(a)(5)(B), and knowingly receiving child

pornography that was transported in interstate commerce, id. § 2252A(a)(2).

McAndrew argues that the government materially breached its written plea

agreement to recommend a sentence within the advisory guideline range. See

United States v. Johnson, 132 F.3d 628, 631 (11th Cir. 1998). The government

confesses error. The government concedes that, at resentencing, it breached the

plea agreement by asking the district court to sentence McAndrew above the

guideline range to the maximum term of imprisonment. We vacate and remand

this case for a new sentencing hearing before a different district court judge.

VACATED AND REMANDED.