USA v. Martinez, No. 05-41866 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 05-41866 Summary Calendar November 26, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. GABRIEL MARTINEZ Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:02-CR-804-2 Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges. PER CURIAM:* Gabriel Martinez appeals the sentence imposed following his guilty-plea conviction for conspiracy to engage in unlawful racketeering conduct in relation to a Racketeer Influenced and Corrupt Organization (RICO) and conspiracy to receive firearms after having previously been convicted of a felony. Martinez argues that the Government breached the plea agreement by failing to recommend a 140-month sentence, as it had promised in the plea agreement. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-41866 The record establishes, and the Government concedes, that it breached the plea agreement. Martinez s sentence is vacated and the case is remanded for resentencing before a different district court judge. See United States v. Saling, 205 F.3d 764, 768 (5th Cir. 2000). SENTENCE VACATED; CASE REMANDED FOR RESENTENCING 2

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