Argued: January 28, 2016.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:13-cr-00252-RJC-2)
Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
NIEMEYER, Circuit Judge:
Xayver Warner, who pleaded guilty pursuant to a plea agreement to one count of aiding and abetting the theft of a firearm, contends that the government breached the plea agreement. We agree.
In the plea agreement, the government agreed to advise the district court at sentencing that the parties had agreed that the 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (increasing a defendant's offense level for use or possession of a firearm in connection with another felony offense) did not apply. The government's agreement on the inapplicability of the enhancement was based, at least in part, on its view that a North Carolina conviction for breaking and entering a motor vehicle did not constitute a felony offense for a defendant with Warner's criminal history.
At sentencing, however, the government advised the court that it had changed its position on whether a North Carolina breaking and entering offense constituted a felony, concluding that it did, regardless of a defendant's criminal history. Nonetheless, the government asked the court to honor the plea agreement and not apply the enhancement to Warner. The court, however, chose to apply the enhancement and sentenced Warner to 48 months' imprisonment.
Because we conclude that the government, although acting in good faith, breached its undertaking in the plea agreement by stating that the enhancement did apply, we vacate Warner's sentence and remand for resentencing before a different district ...