United States v. Spencer

22 F. App'x 867

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2001
• Docket: No. 01-10309; D.C. No. CR-00-973-PHX-EHC
• Status: Published

Opinion

MEMORANDUM

**

Richard Gene Spencer appeals the twelve-month sentence imposed following his guilty plea conviction for one count of wire fraud, in violation of 18 U.S.C. § 1343. We have jurisdiction pursuant to 18 U .S.C. § 3742, and we vacate the sentence.

Spencer contends that the government breached the plea agreement by failing to recommend the low end of the applicable guideline range.¹ The government concedes the breach.

We agree that Spencer adequately preserved the objection in the district court. See United States v. Myers, 32 F.3d 411 (9th Cir.1994) (per curiam). We therefore vacate and remand for resentencing before a different sentencing judge. See United States v. Mondragon, 228 F.3d 978, 981 (9th Cir.2000) (requiring transfer for re-sentencing after government breach); Myers, 32 F.3d at 413.

We further order that Spencer be released from custody forthwith pending re-sentencing. The mandate shall issue forthwith.

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.

1 . The court imposed a high end sentence.