                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 26 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50248

              Plaintiff-Appellee,                D.C. No.
                                                 2:16-cr-00011-SJO-1
 v.

RAMON SULLIVAN ALVAREZ, AKA                      MEMORANDUM*
Ramon Salgado Alvarez, AKA Ray
Alvarez, AKA Raymond Alvarez,

              Defendant-Appellant.


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

                        Argued and Submitted July 14, 2017
                               Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN,** District
Judge.

      Ramon Alvarez, a former detective with the Los Angeles Police Department

(“LAPD”), appeals his sentence—12 months of imprisonment plus six months of

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
home confinement—for one count of making a false statement in violation of 18

U.S.C. § 1001(a)(2). Alvarez was accused of stealing drug proceeds based, in part,

on some $6,000 in cash found in his car on the day the proceeds were seized. He

denied the theft, but later admitted lying about the source of the money found in

his car, and pleaded guilty to the one false statement count. We have jurisdiction

under 18 U.S.C. § 3742(a). We vacate Alvarez’s sentence and remand for

resentencing before a different district judge.

      1.     The district court plainly erred by applying the substantial evidence

standard of proof, rather than the heightened clear and convincing standard, in

increasing Alvarez’s offense level by nine on the basis of the uncharged theft.

“Because [Alvarez] failed to object to the district court’s application of the

[substantial evidence] standard, we review for plain error.” United States v.

Jordan, 256 F.3d 922, 926 (9th Cir. 2001); see Fed. R. Crim. P. 52(b) (“A plain

error that affects substantial rights may be considered even though it was not

brought to the court’s attention.”).

      “[T]he Due Process Clause requires the application of a clear and convincing

evidence standard when an enhancement based upon uncharged conduct has an

extremely disproportionate effect on the length of a defendant’s sentence.” United

States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000). We determine whether a


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sentencing factor has an extremely disproportionate effect under the totality of the

circumstances test identified in Valensia. United States v. Hymas, 780 F.3d 1285,

1290 & n.2 (9th Cir. 2015).

      Here, two of the six factors—whether the enhanced sentence departed from

the sentencing guidelines by more than four levels, and whether the enhancement

more than doubled the length of the initial sentence—indicate that the uncharged

theft offense, used by the court to increase Alvarez’s offense level by nine, had an

“extremely disproportionate effect” on sentencing. In addition, the third factor,

which assesses whether the facts offered in support of the enhancement create new

offenses requiring separate punishment, is also satisfied here. The government’s

arguments to the contrary—that four of the increased levels should be disregarded,

and that home confinement should not count towards the length of Alvarez’s

sentence—are unavailing.

      2.     The district court’s failure to apply the clear and convincing evidence

standard affected Alvarez’s substantial rights and undermined the fairness of the

judicial proceeding. See Johnson v. United States, 520 U.S. 461, 467 (1997). The

evidence at sentencing did not meet the clear and convincing evidence standard.

The district court relied on statements made by LAPD Detective Todd Hankel in an

unsworn police interview, to the effect that Hankel suspected Alvarez had taken


                                          3
money from the drug proceeds based on a partial view of Alvarez’s arm movement

and his belief that he saw the money outlined in Alvarez’s pocket. Hankel did not

testify under oath at the sentencing hearing, and Alvarez had no opportunity to

cross-examine him. Moreover, other record evidence casts doubt upon Hankel’s

statements, including potential impeachment evidence and repeated assertions both

before and after the search by Martin Hernandez, from whom the money was

seized, that he did not possess more than the $10,000 found in his lockbox. In

addition, Hankel’s own testimony indicates that it would have been difficult for

Alvarez to count the money in the lockbox and leave exactly $10,000, i.e., the

amount claimed by Hernandez to be in the lockbox. Although there was some

evidence that several minutes passed between the time Alvarez arrived at the

Conex storage and the time that the money was first photographed, Hankel testified

that he never left Alvarez alone; he only briefly turned away from Alvarez when

the alleged theft took place; and another officer, Michelle Jong, was also in the

storage unit.

       Further, reliable evidence from the LAPD laboratory pointed to possible

DNA cross-contamination. Even the government admitted in its sentencing papers

that “partial uncertainty . . . exists with respect to the theft allegation,” and that

Hernandez’s statements “do not confirm that a theft ever occurred.” Under these


                                             4
circumstances, we cannot say that the uncharged theft enhancement was supported

by clear and convincing evidence.

      3.     Alvarez’s due process rights were violated because there was a risk

that Alvarez was “chilled” as a result of the district court’s statements that his

sentence could be increased if he pursued the right to introduce exculpatory

evidence. Cf. Nulph v. Cook, 333 F.3d. 1052, 1057 (9th Cir. 2003) (stating that

due process “requires that a defendant be freed of apprehension of such a

retaliatory motivation on the part of the sentencing judge[;] [o]therwise, the

defendant will be chilled in the exercise of his right to challenge a conviction or

sentence”) (internal quotation marks and citation omitted). At sentencing, the

district court found Detective Hankel’s police interview statements “compelling”

evidence that Alvarez had stolen the money. Defense counsel sought to introduce

evidence impeaching Hankel’s credibility and challenging his story. But defense

counsel chose not to proceed when the court indicated that it was “prepared to

impose a sentence of one year plus home confinement,” but that such a sentence

would not be sufficient if the defense were to bring Hankel in for a hearing and the

court still found his testimony “compelling.” This threat violated due process. See

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because




                                           5
he has done what the law plainly allows him to do is a due process violation of the

most basic sort . . . .”); Nulph, 333 F.3d at 1057.

      However, because counsel failed to object and instead chose to acquiesce to

the district court’s warning, we review this claim for plain error only, and we

conclude that Alvarez has not satisfied that standard.

      4.     We ordinarily do not entertain claims of ineffective assistance of

counsel on direct appeal. United States v. Rahman, 642 F.3d 1257, 1259–60 (9th

Cir. 2011). We decline to depart from our standard practice here, because this is

not one of the “unusual cases where (1) the record on appeal is sufficiently

developed to permit determination of the issue, or (2) the legal representation is so

inadequate that it obviously denies a defendant his Sixth Amendment right to

counsel.” Id. at 1260.

      5.     Finally, Alvarez asks that this case be reassigned to a new district

judge on remand. Reassignment is warranted here because the judge may “have

substantial difficulty in putting out of his . . . mind previously expressed views or

findings determined to be erroneous,” making “reassignment . . . advisable to

preserve the appearance of justice.” United States v. Rivera, 682 F.3d 1223, 1237

(9th Cir. 2012) (citation omitted). We therefore instruct the Clerk of the United

States District Court for the Central District of California to reassign this case to a


                                            6
different district judge on remand. On remand, the new district judge shall

resentence Alvarez without the theft enhancement.

      VACATED, REMANDED, AND REASSIGNED.




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