                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 28 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50452

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05143-LAB-1

  v.
                                                 MEMORANDUM*
JESUS MEDINA-CASTRO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                       Argued and Submitted May 16, 2014
                              Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges, and TIGAR, District
Judge.**

       Jesus Medina-Castro appeals the sentence imposed following his guilty plea

to bulk cash smuggling, in violation of 31 U.S.C. § 5332(a). We have jurisdiction



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We vacate Medina-Castro’s

sentence and remand for resentencing.

      The district court’s finding during sentencing that Medina-Castro knowingly

smuggled 17.88 kilograms of methamphetamine was not “supported by a

preponderance of the evidence—‘a showing that the relevant fact is more likely

true than not.’” United States v. Highsmith, 268 F.3d 1141, 1142 (9th Cir. 2001)

(quoting United States v. Collins, 109 F.3d 1413, 1420 (9th Cir. 1997)). Thus,

Medina-Castro’s “sentence must be vacated [because] the district court

demonstrably relie[d] upon false [and] unreliable information.” United States v.

Safirstein, 827 F.2d 1380, 1387 (9th Cir. 1987). Specifically, the district court

relied on “[u]nreasonable inferences and material assumptions” to enhance

Medina-Castro’s penalty. Id.

      The district court’s assumption that Medina-Castro knew about the drugs,

and did not mind transporting drugs, is unsupported by the record. First, the

emails between Medina-Castro and Ricardo Manriquez indicate that Medina-

Castro was only aware of the potential violation of currency reporting requirements

at the border. Medina-Castro was also explicitly assured that no narcotics were

involved.




                                          2
      Second, there is no indication that Medina-Castro’s “bad feeling about the

situation” sprung from his knowledge that he was transporting narcotics—rather,

that “bad feeling” could have just as easily pertained to his reluctance to violate

currency reporting requirements. Medina-Castro neither had any prior interaction

with the criminal justice system, nor had he ever transported contraband. Although

Medina-Castro possessed a valid border-crossing visa, evidence before the district

court established that he had not entered the United States for approximately a year

prior to his arrest. Thus, the district court’s inference of knowledge from Medina-

Castro’s “bad feeling” was thus unreasonable because the statement “could support

inferences of other activities, legal or illegal, as readily as they support an

inference of trafficking in narcotics.” Id. at 1386.

      Third, in light of the unique facts presented in this case, the district court

abused its discretion and committed procedural error in presuming awareness of

the narcotics on the part of Medina-Castro based on mere possession. In sum,

then, because the “trial court inferred that [Medina-Castro] was a participant in a

crime with which he was not charged [and t]he inference directly resulted in the

enhancement of [Medina-Castro’s] penalty,” the district court violated Medina-

Castro’s due process rights. Id. at 1385.




                                            3
      We remand this case for resentencing. “While we believe that on remand

the district judge would be fair and impartial, this case presents an unusual

circumstance wherein reassignment to a different judge is desirable” and would

serve “[t]he appearance of justice.” United States v. Reyes, 313 F.3d 1152, 1160

(9th Cir. 2002). Thus, upon remand, this case shall be reassigned by the Clerk of

the Southern District of California to another district court judge.

      VACATED; REMANDED.




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