                                                                            FILED
                               NOT FOR PUBLICATION
                                                                            AUG 08 2016
                        UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No.   15-50207

                  Plaintiff-Appellee,              D.C. No.
                                                   2:13-cr-00082-SVW-1
 v.

JESUS AGUILAR-GARCIA,                              MEMORANDUM*

                  Defendant-Appellant.


                       Appeal from the United States District Court
                           for the Central District of California
                       Stephen V. Wilson, District Judge, Presiding

                           Argued and Submitted August 4, 2016
                                   Pasadena, California

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

       Jesus Aguilar-Garcia appeals his sentence for illegal reentry in violation of 8

U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 3742(a). We vacate

Aguilar-Garcia’s sentence and remand for further proceedings before a different

district judge.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.       Aguilar-Garcia’s claim that the government breached its plea

agreement was within the scope of our resentencing mandate. “[A]s a general

matter, if a district court errs in sentencing, we will remand for resentencing on an

open record—that is, without limitation on the evidence that the district court may

consider.” United States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc).

Here, we explicitly “remand[ed] for resentencing on an open record.” Although

our resentencing mandate identified certain errors in the district court’s original

sentencing, our mandate had no express limitations. The district court was

therefore “free to consider any matters relevant to sentencing, even those that may

not have been raised at the first sentencing hearing, as if it were sentencing de

novo.” Id. at 885–86. Aguilar-Garcia’s claim that the government breached its

plea agreement was relevant to sentencing, and the district court had jurisdiction to

consider it.

      2.       Aguilar-Garcia did not waive this claim by failing to raise it in his

prior appeal. At resentencing, Aguilar-Garcia was free to raise any issues relevant

to sentencing, including issues “that may not have been raised at the first

sentencing hearing.” Id. at 885. Aguilar-Garcia timely raised this claim of breach

at resentencing: he asserted it at the resentencing hearing, and the district court




                                           -2-
rejected it. We therefore review this claim de novo. See United States v. Whitney,

673 F.3d 965, 970 (9th Cir. 2012).1

      3.     The government breached its plea agreement. The government “may

not superficially abide by its promise to recommend a particular sentence while

also making statements that serve no practical purpose but to advocate for a

harsher one.” United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014). As

in Heredia, the government promised that it would not “seek, argue, or suggest in

any way . . . that the court impose a sentence other than what has been stipulated to

by the parties herein.” However, as in Heredia, the government broke this promise

by filing a sentencing memorandum that recommended the agreed-upon sentence

but emphasized Aguilar-Garcia’s criminal history and propensity.

      The government’s sentencing memorandum contains the same defects that

we emphasized in finding a breach in Heredia. First, the government made

“repeated and inflammatory references” to Aguilar-Garcia’s criminal convictions,

even though his convictions were already documented in the presentence report

(“PSR”). Id. at 1232. For example, using language almost identical to the

“pejorative editorializing” it used in Heredia, id. at 1233, the government argued

      1
       The same result would obtain under plain error review, for the
government’s breach of the plea agreement was plain error that affected Aguilar-
Garcia’s substantial rights. See Whitney, 673 F.3d at 968.

                                         -3-
that Aguilar-Garcia’s “demonstrated propensity for drug trafficking is extremely

serious,” and that he “betrays a disregard for the criminal and immigration laws of

the United States,” see id. at 1232–33. Second, the government highlighted

“prejudicial details” of Aguilar-Garcia’s prior crimes, including his alleged gang

membership. Id. at 1233. Third, there was “no reason to believe that the district

court was considering imposing a sentence less harsh than the stipulated one,” id.

at 1232, for the district court had provisionally accepted the plea agreement and the

Probation Office had recommended the same sentence as the parties. Finally, the

sentencing memorandum provided “no mitigating information at all.” Id. at 1234.

As in Heredia, “[t]he reader is left to wonder why the government believed a low-

end Guidelines sentence was appropriate in the first place.” Id.2

      4.     Because the government breached its plea agreement, the district court

must “immediately transfer the case to a different district judge to ensure that the

decision to accept or reject the agreement will be untainted by the breach.” Id. at




      2
         At oral argument, counsel for the government explained that its sentencing
memorandum followed a template used by the United States Attorney’s Office
prior to our decision in Heredia. Counsel for the government further explained
that the government has since discontinued this practice.

                                          -4-
1236. On remand, therefore, the Clerk of the United States District Court for the

Central District of California shall reassign the case to a different district judge.3

      This disposition will serve as the mandate of the Court and shall issue

forthwith.

      VACATED AND REMANDED with instructions.




      3
        Because we vacate Aguilar-Garcia’s sentence on the ground that the
government breached the plea agreement, we need not reach Aguilar-Garcia’s
argument that the district court erred in determining that his prior conviction for
possession of a controlled substance, in violation of California Health and Safety
Code § 11378, is a “drug trafficking offense” under § 2L1.2 of the Sentencing
Guidelines.

                                           -5-
