                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               MAY 31 2016
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50443

              Plaintiff - Appellee,               D.C. No. 2:04-cr-00263-SVW-1
                                                  Central District of California,
 v.                                               Los Angeles

LORENZO ESPINOZA, AKA Seal A,
                                                  ORDER
              Defendant - Appellant.


Before: PREGERSON and CALLAHAN, Circuit Judges and BASTIAN,* District
Judge.

      Judge Pregerson and Judge Bastian have voted to grant the petition for panel

rehearing. Judge Callahan has voted to deny the petition for panel rehearing. The

petition for panel rehearing is GRANTED.

      Reassignment is necessary to preserve the appearance of justice. We instruct

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

different district court judge upon remand.




       *
             The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
                                                                             FILED
United States v. Espinoza, No. 13-50443
                                                                              MAY 31 2016
CALLAHAN, Circuit Judge, dissenting:                                      MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I dissent from the grant of the petition for rehearing. Here, the district

court’s error was only failing to give the parties notice that it would consider

confidential Presentence Investigative Reports of other defendants. Accordingly,

there is no need to depart from our general rule that resentencing is to be done by

the original sentencing judge. United States v. Acosta-Chavez, 727 F.3d 903, 910

(9th Cir. 2013). Because there is no need for the district judge to put the reports

out of his mind, reassignment is not necessary to preserve the appearance of

justice. See United States v. Mikaelian, 168 F.3d 380, 387–88 (9th Cir. 1999).

The reassignment is an unnecessary and undeserved slap at the district judge as

well as a “waste and duplication out of proportion to any gain in preserving the

appearance of fairness.” Id.
