                                                               NOT FOR PUBLICATION                FILED
                                             UNITED STATES COURT OF APPEALS                        DEC 30 2015
                                                                                               MOLLY C. DWYER, CLERK
                                                                                                U.S. COURT OF APPEALS
                                                               FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                                                   No. 14-50022

                 Plaintiff - Appellee,                                       D.C. No. 2:13-cr-00288-R-1

     v.
                                                                             MEMORANDUM*
 JERRY ANTHONY GREGOIRE, Jr., AKA
 Jerry Gregoire, AKA Jerry Anthony
 Gregoire,

                 Defendant - Appellant.

                                            Appeal from the United States District Court
                                               for the Central District of California
                                             Manuel L. Real, District Judge, Presiding

                                              Argued and Submitted December 10, 2015
                                                       Pasadena, California

Before: PREGERSON, CALLAHAN, and HURWITZ, Circuit Judges.

              Jerry Gregoire, Jr. appeals his convictions and sentences on six counts of

making false statements in violation of 18 U.S.C. § 287, six counts of theft of

government property in violation of 18 U.S.C. § 641(a), and one count of




                                                            
*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
aggravated identity theft in violation of 18 U.S.C. § 1028A. We vacate in part and

remand for further proceedings.

      1.     We commend government counsel for his candor and assistance to the

court and accept the government’s concession that the district court erred in failing

to perform an adequate inquiry into Gregoire’s alleged irreconcilable conflict with

appointed counsel. See United States v. Musa, 220 F.3d 1096, 1102-03 (9th Cir.

2000). We remand so that the district court may conduct an adequate inquiry,

including an in camera hearing if necessary, to determine the extent of the pre-trial

conflict between Gregoire and counsel. Id. at 1103. If the district court finds that

an irreconcilable conflict existed that would have resulted in a constructive denial

of counsel or actual prejudice to Gregoire, it shall order a new trial and appoint

new counsel; the convictions otherwise will stand. Id.

      2. The government also correctly concedes that the district court erred by

ordering Gregoire to pay restitution in the total amount of tax refunds issued to

him, instead of the amount of refunds he actually received under the six offenses of

conviction. United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013). We

therefore vacate the restitution order, the amount of which must be recalculated on

remand if the district court does not grant Gregoire a new trial.

      3. Exercising our supervisory powers under 28 U.S.C. § 2106, we direct this

case be reassigned to a different judge on remand. See United States v. Working,


                                          2
287 F.3d 801, 809 (9th Cir. 2002).

      VACATED IN PART and REMANDED.




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