UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5534

CLAUDE WILLIAMS, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, Chief District Judge.

(CR-93-26-V)

Argued: March 7, 1997

Decided: March 31, 1997

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jesse James Waldon, Jr., JESSE J. WALDON, JR., P.A.,

Matthews, North Carolina, for Appellant. Karen E. Eady, OFFICE OF

THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,

Gretchen C.F. Shappert, Assistant United States Attorney,

Charlotte,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In a plea agreement reached between Claude Williams, III, and the

government in September 1994, Williams agreed to plead guilty to

one cocaine conspiracy count. The agreement included Williams'

promise to cooperate with the government and the government's

promise to "make a motion for downward departure pursuant to

[U.S.S.G.] § 5K1.1 or [Fed. R. Crim. P.] 35 as appropriate" if,

after

Williams' assistance had been "completed," the government determined, in its sole discretion, that Williams had"rendered

substantial

assistance to the government."

At sentencing, Williams provided the court with evidence that he

cooperated with the government and that his cooperation resulted in

the arrest of two persons. The government, however, elected not to

move for a downward departure because, as the government attorney

explained:

I'm not making a 5K, I'm informing the Court I['ll] possibly

make a Rule 35 later based upon whether his cooperation

has in fact borne fruit, but I don't think we should allow

someone to make a deal and then threaten a witness .

The government was referring to an incident where Williams, while

visiting the home of a family member, became involved in a verbal

altercation with the girlfriend of a co-defendant who was also a

possible witness against him and allegedly threatened her. At the time,

Williams' bond was revoked and Williams was taken into custody.

This obstruction of justice allegedly occurred in January following

the

entry of the plea agreement between Williams and the government in

September 1994. As the government's attorney stated,"The plea

agreement was entered, I believe, in September, the obstructionist

behavior occurred in January." Recognizing the government's com2
plete discretion to make the § 5K1.1 downward departure motion, the

district court stated at sentencing, "Well, I think that answers

the

question in the sense that it does not appear that it's a breach

[by the

government] of the plea agreement involved." The court then proceeded to find an offense level of 33 and to sentence Williams to

210

months imprisonment.

On appeal, Williams contends that the government breached its

plea agreement in refusing to recommend a downward departure. The

government, on the other hand, has moved to dismiss the appeal

based on Williams' agreement in the plea agreement to waive appeal.

The government agrees, however, that its motion depends on its not

having breached the plea agreement.

As it turns out, the obstruction of justice did not occur after the

plea agreement as argued by the government and therefore could not

have been a basis for its refusal to file a § 5K1.1 motion to

depart

downward. The obstruction of justice occurred in January 1994, over

one-half year before the plea agreement, and the government now

agrees it was aware of the obstruction at the time the plea

agreement

was signed.

During oral argument, the government conceded that the government's trial attorney had simply been mistaken about the sequence

of

events. But we need not rely only on that concession. The docket

also

supports the correct sequence. It shows that Williams' bond was

revoked on January 24, 1994. The plea agreement was entered some

months later, having been signed by Williams on September 9, 1994,

and by the government on September 16, 1994.

Because the district court sentenced Williams based on mistaken

information, we vacate his sentence and remand the case for resentencing. At resentencing, the district court can determine whether

the

government intends to move for a downward departure under

U.S.S.G. § 5K1.1, whether it is required to do so, and whether its

failure to do so would result in a breach of the plea agreement.

VACATED AND REMANDED

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