United States v. Uzebu ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-20381
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AIBIOKUNLA UZEBU,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
00-CR-347-1
_________________________________________________________________
July 11, 2002
Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Aibiokunla Uzebu was indicted on two counts of bank fraud
and three counts of making false statements. Uzebu pled guilty to one
count of making false statements, in violation of 18 U.S.C. § 1001.
In consideration for Uzebu’s guilty plea, the Government agreed to
move to dismiss the four remaining counts. Uzebu was sentenced to 27
months’ imprisonment and 3 years’ supervised release and ordered to
pay $61,283.74 in restitution.
Uzebu contends that the Government breached the written
plea agreement when, at sentencing, the Government failed to request
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
a dismissal of the four remaining counts. “We consider whether the
Government breached the plea agreement despite an appeal-waiver
provision in the plea agreement.” United States v. Branam, 231 F.3d
931, 931 n.1 (5th Cir. 2000).
The Government concedes that it did not request dismissal
of the remaining counts, that it breached the plea agreement, and that
the district court did not dismiss the four remaining counts. The
Government insists, however, that Uzebu’s substantial rights have not
been affected by the error because the Government “has foresworn
prosecution of the remaining counts.” Uzebu believes he is entitled
to have the judgment in this case accurately reflect the terms of the
agreement he reached with the Government.
When the Government has materially breached a plea
agreement, this court usually vacates the sentence and remands for
resentencing in accordance with the terms of the agreement. See,
e.g., United States v. Valencia, 985 F.2d 758 (5th Cir. 1993). In
this case, however, resentencing is not warranted, as neither party
disputes the validity of the conviction on Count Three or the sentence
imposed by the district court. The only flaw in the judgment is that
it does not indicate that Counts One, Two, Four, and Five were
dismissed at the request of the Government.
The judgment is therefore AFFIRMED AS MODIFIED. The case
is REMANDED for the district court to enter a corrected judgment
reflecting a dismissal of the four remaining counts.
2