Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Appellant's request for oral argument is denied.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.
Before SCHROEDER, Chief Judge, TROTT and PAEZ, Circuit Judges.
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 9th Cir. R. 36-3.
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. The government concedes the breach.
The court imposed a high end sentence.
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 resentencing after government breach); Myers, 32 F.3d at 413.
We further order that Spencer be released from custody forthwith pending resentencing. The mandate shall issue forthwith.
VACATED AND REMANDED.