F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 12 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-4159
v. (District of Utah)
(D.C. No. 98-CR-122-1)
WYATT B. WILLARD,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Wyatt B. Willard appeals from the district court’s entry of judgment and
sentence on his guilty plea to armed bank robbery in violation of 18 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 2113(a) and (d). Willard asserts that the United States breached its plea
agreement when it refused to recommend to the district court a sentence at the
low end of the sentencing range. In its appellate brief, the United States concedes
error and requests that Willard’s sentence be vacated and the case remanded to the
district court for resentencing. Based on the arguments set forth in Willard’s
appellate brief and the United States’ concession of error, this court exercises
jurisdiction pursuant to 28 U.S.C. § 1291, VACATES Willard’s sentence, and
REMANDS the case to the district court for resentencing. Although Willard
disclaims any desire to be resentenced before a different judge, under the
particular facts of this case, we leave that determination to the district court on
remand. See United States v. Brye, 146 F.3d 1207, 1213 (10 th Cir. 1998).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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