                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            AUG 23 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   16-50080

              Plaintiff-Appellee,                D.C. No.
                                                 2:14-cr-00338-SJO-62
 v.

GRADY MYERS, AKA Too Tall,                       MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                      Argued and Submitted August 10, 2017
                              Pasadena, California

Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.

      To the extent a plea agreement is capable of more than one interpretation, we

“constru[e] any ambiguities in the defendant’s favor.” United States v. Heredia,

768 F.3d 1220, 1230 (9th Cir. 2014). Accordingly, the government breached

paragraph 30 of the plea agreement because it argued for the higher drug quantity,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
at several points, thereby encouraging the court to impose a higher sentence. In

light of this breach, “we must remand this matter to a different judge, although in

doing so we ‘intend no criticism of the district judge by this action, and none

should be inferred.’” United States v. Whitney, 673 F.3d 965, 976 (9th Cir. 2012)

(quoting United States v. Johnson, 187 F.3d 1129, 1136 n.7 (9th Cir. 1999)).

      A minimal or minor participant adjustment under § 3B1.2 is available if the

defendant was substantially less culpable than his co-participants. United States v.

Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). The district court failed to compare

Myers’s conduct to that of his co-conspirators. That was error and, on remand, the

district court shall reconsider Myers’s eligibility for a mitigating role reduction.

      We vacate Myers’s sentence and remand for re-sentencing before a different

district court judge.

      VACATED and REMANDED.




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