SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the cause be REMANDED with instructions to assign the case to a different judge for resentencing.

Defendant Gregory Kovar appeals the judgment of the District Court upholding his guilty plea to conspiracy to distribute and possess with the intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(E)(ii), and conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h). The District Court sentenced Kovar principally to 109 months on each count, to run concurrently, followed by five years of supervised release.

On appeal, defendant contends that the Government breached the plea agreement by advocating for an upward departure from the United States Sentencing Guidelines (the "Guidelines"). We review interpretations of plea agreements de novo. United States v. Palladino, 347 F.3d 29, 32 (2d Cir. 2003).

In its plea agreement, the Government agreed to "make no motion for an upward departure under the Sentencing Guidelines." J.A. 52. The District Court found that the recommended term of imprisonment under the guidelines was 70 to 87 months. The Government then referenced the 120-month recommendation of the Probation Office in its Presentence Report, which was above the proposed Guidelines calculation by that office; implicitly referenced its presentence memorandum, dated December 6, 2013, which advocated for a Guidelines calculation that would include the 120-months recommendation in the Guidelines range; stated that it was seeking a Guidelines sentence "at the minimum"; and stated that it could not seek a higher sentence because of the plea agreement. The sentencing court then imposed an above-Guidelines sentence of 109 months, and referenced the 120 months as a benchmark — "I would be inclined to give you 120 months but for the fact that I think you are making some strides . . . ."1 J.A. 250.

Accordingly, with the agreement of the Government2 and defendant, we remand the cause for resentencing and order that the case be transferred to a different judge. In doing so, we do not suggest any impropriety or bias on the part of the experienced and able district judge.3

CONCLUSION

For the foregoing reasons, the cause is REMANDED with instructions to assign the case to a different judge for resentencing.