                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 26 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50167

              Plaintiff-Appellee,                D.C. No. 3:08-cr-04304-BEN-1

 v.
                                                 MEMORANDUM*
ADRIAN ZITLALPOPOCA-
HERNANDEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted August 29, 2017
                              Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,**
Chief District Judge.

      Appellant challenges his 200-month sentence for Aiding and Abetting

Persuasion or Coercion to Travel to Engage in Prostitution under 18 U.S.C. §


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
2422(a), Aiding and Abetting Harboring Aliens for Purposes of Prostitution under

8 U.S.C. § 1328, Aiding and Abetting Bringing Illegal Aliens into the United

States for Financial Gain under 8 U.S.C. § 1324(a)(2)(B)(ii), and Aiding and

Abetting Harboring Illegal Aliens under 8 U.S.C. § 1324(a)(1)(A)(iii). We have

jurisdiction under 28 U.S.C. § 1291. We reverse and remand for resentencing.

      Sentencing decisions are reviewed for abuse of discretion. United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). When selecting a sentence, the

sentencing court must determine the applicable Guidelines range, consider the

factors in 18 U.S.C. § 3553(a), and explain its reasoning in detail sufficient to

permit meaningful appellate review. Id. at 991-92. An explanation is sufficient if it

“communicates that the parties’ arguments have been heard, and that a reasoned

decision has been made.” Id. at 992. For outside-Guidelines sentences, the

sentencing court must consider the extent of departure, and the persuasiveness of

its reasoning must be proportionate to the variance. Id. at 991-92. We set aside a

sentence only if it is procedurally erroneous or substantively unreasonable. Id. at

993. Procedural errors include mistakes in calculating the Guidelines range and

failure to adequately explain the selected sentence. Id.

      Appellant first argues that the district court erred in calculating the

Guidelines range for the period of supervised release following his prison sentence.


                                           2
Because this claim was not preserved below, we review for plain error. United

States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). Because

appellant will almost certainly be removed following his release, and because his

period of supervised release will be waived on his removal, the term of supervised

release will not affect his substantial rights. The plain error standard therefore has

not been met, and we affirm that part of the sentence.

      Appellant also argues that the district court’s explanation for its sentence

was procedurally deficient. The court erred by failing to adequately address the

arguments raised in appellant’s sentencing memorandum. “[W]hen a party raises a

specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support

of a requested sentence, then the judge should normally explain why he accepts or

rejects the party's position.” Carty, 520 F.3d at 992-93. “[A] mere statement that

the judge had read the papers is [not], by itself and automatically, sufficient as an

explanation of the judge's treatment of the § 3553(a) factors.” United States v.

Trujillo, 713 F.3d 1003, 1010 (9th Cir. 2013). The district court failed to

adequately address appellant’s argument, “tethered” to 18 U.S.C. § 3553(a)(6), that

similarly situated defendants were given lighter sentences. We thus remand for the

court to consider that argument and explain why it accepts or rejects the argument.




                                           3
      Finally, appellant argues that his sentence was substantively unreasonable. A

sentence is not substantively unreasonable where “the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C. §

3553(a).” United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011)

(internal quotations omitted). The record here reflects meaningful consideration of

the 18 U.S.C. § 3553(a) factors, spanning three sentencing proceedings. The

sentence was not substantively unreasonable.

      Appellant has asked that his case be reassigned on remand. We reassign only

in unusual circumstances, when the original judge would have substantial difficulty

reevaluating its prior, erroneous views or findings, or when prudent to preserve the

appearance of justice. Earp v. Cullen, 623 F.3d 1065, 1071 (9th Cir. 2010). While

we acknowledge that this will be the third resentencing in this case, we do not

believe that the standard for reassignment has been met, especially given that the

sentencing judge has demonstrated a willingness to reevaluate and revise the

sentence on remand. We thus remand to the original judge.

      VACATED AND REMANDED.




                                          4
                                                                                   FILED
USA v Zitlalpopoca-Hernandez 16-50167                                               SEP 26 2017
                                                                                MOLLY C. DWYER, CLERK
Freudenthal, Chief District Judge, concurring in part and dissenting in part:    U.S. COURT OF APPEALS


       I concur with the majority’s finding that the district court judge’s sentencing

decision was not procedurally sound, but I dissent from the majority’s finding that the

sentence is substantively reasonable. I also dissent from the decision not to reassign the

case to a new district court judge for sentencing.

       With the conclusion that the district court judge’s sentencing decision is not

procedurally sound, I would not reach the issue of whether the sentence is substantively

reasonable. United States v. Ellis, 641 F.3d 411, 422 (9th Cir. 2011) (citing Gall v.

United States, 552 U.S. 38, 51 (2007) (“[i]n the absence of a ‘significant procedural

error,’ this court reviews a sentence for substantive reasonableness”).

       Additionally, I would find the standard for reassignment has been met.

“Reassignment absent a showing of the judge’s personal bias is appropriate if the panel

reasonably expects that the original judge would have ‘substantial difficulty in putting out

of his or her mind previously-expressed views or findings determined to be erroneous or

based on evidence that must be rejected,’ . . . .” United States v. Musa, 18 F. App'x 549,

550 (9th Cir. 2001)(citing, United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th

Cir.1986)).

       This matter has been before the same district court judge on three occasions. The

district court judge’s statements from the April 18, 2016 sentencing demonstrate the

substantial difficulty he will have in reevaluating prior erroneous views or findings. The

judge characterized Zitlalpopoca-Hernandez as a violent, despicable predator engaged in
egregious conduct (“physical scars heal, but the mental and emotional torture was even

more disturbing”). However the record contains no evidence of any physical violence

against the two women related to prostitution, and no evidence of conduct amounting to

mental and emotional torture. The judge expressed his firmly held view that the two

women suffered psychological damage, again with no evidence in the record of any

psychological damage. These erroneous views about violence and psychological damage

resulted in the district court judge’s firmly held view that Zitlalpopoca-Hernandez’s

conduct eliminated the women’s ability to consent, with no evidence that the two women

could not and did not make choices of their own, including choices to leave and then

return. Finally, while the district court judge revised the sentence on remand, he did so

after remarking that, “And I’m down to 200 months. And you know, I think there comes

a point where we have to say, this behavior cannot be tolerated.” The district court judge

only reluctantly reduced the sentence after saying, “I must be getting softer as I age” and

“only because of some of [Appellant’s] rehabilitation while he’s in prison.”

       I believe this case is an unusual circumstance when the original district court judge

would have substantial difficulty reevaluating his prior, erroneous views or findings.

Earp v. Cullen, 623 F.3d 1065, 1072 (9th Cir. 2010).
