                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50489

                Plaintiff-Appellee,             D.C. No.
                                                8:13-cr-00105-DOC-1
 v.

THOMAS IAZZETTA, AKA Thomas                     MEMORANDUM*
Tommy Iazetta,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                     Argued and Submitted November 7, 2018
                              Pasadena, California

Before: WARDLAW, RAWLINSON, and HURWITZ, Circuit Judges.

      Thomas Iazzetta pleaded guilty to three counts of violating 18 U.S.C. §

1030(a)(2)(C), and was sentenced to six months in prison and ordered to pay

$2,800,000 in restitution. This appeal challenges the prison sentence and restitution

order. We vacate and remand for further proceedings.

      1. Iazzetta’s plea agreement waived his right to appeal his conviction and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
sentence if the district court imposed a term of 36 months or less. Although the court

did so, we cannot enforce the appeal waiver because (1) the judge unambiguously

advised Iazzetta at sentencing that he had the right to appeal; (2) the court confirmed

that Iazzetta understood that right; and (3) the government did not object to the

judge’s statements. See United States v. Buchanan, 59 F.3d 914, 917–18 (9th Cir.

1995); United States v. Felix, 561 F.3d 1036, 1041 (9th Cir. 2009).

      2. The government concedes that the district judge violated Federal Rule of

Criminal Procedure 11(c)(1) by threatening to reject the plea agreement unless

Iazzetta stipulated to the government’s proposed loss calculation. Because the loss

calculation for purposes of the Sentencing Guidelines and the restitution order were

based on that stipulation, there is a “reasonable probability” that the sentence and

restitution order would have been different absent the violation. United States v.

Christensen, 732 F.3d 1094, 1102 (9th Cir. 2013). We therefore vacate the sentence

and restitution order, and remand so that the district court can determine the loss

caused by Iazzetta’s crimes without use of the stipulation.

      VACATED AND REMANDED




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