                                                                              FILED
                                NOT FOR PUBLICATION                            APR 29 2013

                                                                           MOLLY C. DWYER, CLERK
                         UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                                 No. 11-10616

                   Plaintiff - Appellant,                  D.C. No. 2:09-cr-00408-
                                                           LKK-1
     v.

 JOSE LUIS VALENCIA-MENDOZA,
                                                           MEMORANDUM *
                   Defendant - Appellee.

                      Appeal from the United States District Court
                          for the Eastern District of California
                   Lawrence K. Karlton, Senior District Judge, Presiding

                                   Submitted April 15, 2013 **
                                   San Francisco, California

Before: KOZINSKI, Chief Judge; O’SCANNLAIN and N.R. SMITH, Circuit
Judges.

1.        The district judge erred by placing the burden of proof on the government to

show that Valencia-Mendoza was ineligible for safety-valve relief. See United




           *
           This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

           **
           The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th Cir. 2007); see also 18 U.S.C.

§§ 3553(f)(2), (5). Consequently, his finding that Valencia-Mendoza was safety-

valve eligible was clearly erroneous. See Mejia-Pimental, 477 F.3d at 1103.

2.    This case is ordered assigned to a new district judge on remand in light of

the “unusual circumstances.” United States v. Arnett, 628 F.2d 1162, 1165 (9th

Cir. 1979) (internal quotation marks omitted). The district judge stated on the

record that his “sentencing justice [was] deeply offended” by the sentencing

disparity that would arise from imposition of the mandatory minimum and further

indicated his desire not to be tasked with resentencing on remand. These

statements suggest that (1) the district judge would “have substantial difficulty in

putting out of his . . . mind previously-expressed views” regarding Valencia-

Mendoza’s sentence; (2) “reassignment is advisable to preserve the appearance of

justice”; and (3) “preserving the appearance of fairness” outweighs the minimal

duplication of effort that will be necessary for a new judge to resentence Valencia-

Mendoza. Id.

      REVERSED and REMANDED.




                                           2
