                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 28 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   16-10425

                Plaintiff-Appellee,             D.C. No.
                                                4:15-cr-01285-CKJ-DTF-1
 v.

CEASAR ADRIAN RODRIGUEZ, AKA                    MEMORANDUM *
Cesar Adrian Rodriguez,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted March 14, 2018
                           San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior
District Judge.

      Ceasar Rodriguez appeals his conviction and 60-month sentence for

possession of counterfeit securities. We affirm his conviction, vacate his sentence,

and remand.


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Jed S. Rakoff, Senior United States District Judge for the
Southern District of New York, sitting by designation.
      1. Because Rodriguez did not object in the district court, we review his

argument that the Government breached its plea agreement with him for plain

error. See Puckett v. United States, 556 U.S. 129, 143 (2009). While the

Government did not enthusiastically support the sentencing ranges to which it had

agreed, nothing it said was inconsistent with the view that a sentence within those

ranges was appropriate. The Government’s seemingly accidental misstatement

about the agreed-upon ranges was quickly corrected by the court. See United

States v. Heredia, 768 F.3d 1220, 1235 (9th Cir. 2014) (holding that the

government does not breach the plea agreement through a “slip of the tongue” that

is promptly corrected (quoting United States v. Alcala-Sanchez, 666 F.3d 571, 576

(9th Cir. 2012))). Contrary to its statement that it could not argue “for” the plea

agreement, the Government could have encouraged the court to accept the

agreement. But because this particular plea agreement did not require the

Government to advocate for the agreed-upon ranges, and the Government

encouraged the district court to accept the stipulated sentencing ranges in its pre-

hearing filings, it did not breach the agreement. Any breach therefore certainly

was not plain.

      2. The district court’s statement, in response to a question from Rodriguez’s

lawyer, that it would be more comfortable with a 60-month sentence than with the

sentences contemplated by the rejected plea agreement does not warrant reversal


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on plain error review. See United States v. Myers, 804 F.3d 1246, 1256 (9th Cir.

2015). Even assuming the statement violated Federal Rule of Criminal Procedure

11, any such error did not affect Rodriguez’s substantial rights or undermine the

integrity of the judicial proceedings. See Johnson v. United States, 520 U.S. 461,

467 (1997); United States v. Olano, 507 U.S. 725, 734 (1993). Rodriguez has not

argued that his decision to plead guilty was affected by the court’s statement, nor is

there an indication that the court’s decision to respond to counsel’s inquiry harmed

Rodriguez in any other way. Cf. Myers, 804 F.3d at 1258.

      3. We nonetheless vacate Rodriguez’s sentence because the district court

incorrectly calculated Rodriguez’s criminal history category based on the evidence

presented to it. The Government has waived the argument that the district court

correctly classified Rodriguez’s conviction for Arizona aggravated assault as a

crime of violence based on the information in the pre-sentence investigation report.

Even if the Government had not waived the issue, we would still vacate

Rodriguez’s sentence. We have previously held that Arizona aggravated assault is

not categorically a crime of violence. See United States v. Esparza-Herrera, 557

F.3d 1019, 1025 (9th Cir. 2009). And while Arizona’s aggravated assault statute is

divisible, see United States v. Cabrera-Perez, 751 F.3d 1000, 1005, 1007 (9th Cir.

2014), the record does not demonstrate that Rodriguez was convicted of a version

of the offense that would constitute a crime of violence. See United States v.


                                          3
Sahagun-Gallegos, 782 F.3d 1094, 1099-100 (9th Cir. 2015). We have said that

miscalculating the guidelines range “is a significant procedural error that requires

us to remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d

1028, 1030 (9th Cir. 2011); see also United States v. Lee, 821 F.3d 1124, 1126 (9th

Cir. 2016). We remand because there is a reasonable probability that the district

court would have sentenced Rodriguez differently if he were placed in Criminal

History Category IV rather than V. See Molina-Martinez v. United States, 136 S.

Ct. 1338, 1345 (2016); U.S. Sentencing Commission Guidelines Manual ch. 5, pt.

A, Sentencing Table (U.S. Sentencing Comm’n 2014).

        4. Because Rodriguez will be resentenced, we do not reach his other

arguments about this particular sentencing proceeding. See United States v.

Gonzalez-Monterroso, 745 F.3d 1237, 1245 (9th Cir. 2014).1

        AFFIRMED as to Rodriguez’s conviction; VACATED and REMANDED

as to Rodriguez’s sentence.




        1
         We do note that the district court appears to have believed erroneously that
it should not compare the sentences of Rodriguez and co-conspirator Joshua
Ramirez. In fact, it is very appropriate for sentencing courts to compare similarly
situated defendants in assessing the “nature and circumstances of the offense”
under 18 U.S.C. § 3553(a)(1). United States v. Saeteurn, 504 F.3d 1175, 1181-82
(9th Cir. 2007); cf. United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009).
        We grant Rodriguez’s motion for judicial notice of documents in Ramirez’s
case.

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