UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4453

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CLIFFORD THOMAS MCCARTNEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (CR-04-71-7)

Submitted: November 30, 2005 Decided: January 9, 2006

Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Windy C. Venable, Research and

Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.

Whitney, United States Attorney, Anne M. Hayes, Christine Witcover

Dean, Assistant United States Attorneys, Raleigh, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Clifford Thomas McCartney appeals his conviction and

sentence for two counts of bank robbery in violation of 18 U.S.C.

§ 2113(a) (2000). McCartney pled guilty, pursuant to a plea

agreement, in which, in exchange for his plea, the government

agreed to “recommend the low end of the applicable guideline

range.” On appeal, McCartney argues that the government breached

the plea agreement by failing to comply with this term of the

agreement. We agree and therefore vacate McCartney’s sentence and

remand.

At sentencing, McCartney’s counsel argued in support of

a sentence at the low end of the applicable advisory guideline

range or lower. When the court inquired of the government its

position on sentencing, the Assistant United States Attorney

responded: “Just that we’d ask that you stay within the advisory

guideline range, Sir, but I don’t have an opinion as to whether it

should be the low end or the high end at this point.”

After McCartney’s counsel noted that the plea agreement

required the government to recommend a sentence at the low end of

the applicable guideline range, the court stated, “Well, I

understand that and I will consider that [the AUSA] has done so

after your having called this to her attention.” The court

proceeded to sentence McCartney to 115 months, the top of the

advisory guideline range of 92 to 115 months.
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A plea agreement is breached when a government promise

which induces the plea goes unfulfilled. Santobello v. New York,

404 U.S. 257, 262 (1971); United States v. Ringling, 988 F.2d 504,

506 (4th Cir. 1993). By not recommending a sentence at the low end

of the guidelines range, the government did not fulfill its

obligations under the plea agreement. See United States v.

Peglera, 33 F.3d 412, 414 (4th Cir. 1994) (“Given the express

inclusion of [a promise to recommend a lower sentence] in the plea

agreement, there would seem to be little question that the

government’s [failure to do so] constituted a breach.”).

After McCartney’s counsel informed the sentencing court

of the government’s promise in the plea agreement, the court deemed

the recommendation made. This is not sufficient to excuse the

government’s failure to comply with its promise made in the plea

agreement. See id. “[R]esentencing is required under Santobello

regardless of the judge’s awareness of the government's ‘real’

position as indicated in the plea agreement.” Id., citing United

States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990).

Case law requires us to remand this case to a different

district judge for resentencing. See Santobello, 404 U.S. at 263;

Peglera, 33 F.3d at 415. Our decision in no way impugns the

sentencing judge, who competently conducted the proceedings.

We vacate the sentence and remand the case to a different

district judge for resentencing. Upon remand, the district court
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shall resentence McCartney consistent with the requirements of this

opinion. 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