                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10282

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-00009-LRH-WGC-1
 v.

RAFAEL ALFONSO MEDINA, Jr.,                     MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                    Argued and Submitted November 13, 2019
                            San Francisco, California

Before: BENNETT and LEE, Circuit Judges, and PIERSOL,** District Judge.

      Rafael Alfonso Medina, Jr. (“Medina”) appeals the 108-month sentence

imposed by the district court following his guilty plea to one count of assault

causing serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6), 1151 and

1153. We have jurisdiction pursuant to 28 U.S.C. § 1291.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
1.     Medina alleges that the district court denied him due process by

“consider[ing] unreliable information” that was “demonstrably made the basis for

the sentence.” United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995).

Reviewing the constitutionality of Medina’s sentence de novo, United States v.

Mezas de Jesus, 217 F.3d 638, 642 (9th Cir. 2000), we agree.

       At sentencing, the district court considered the murder as relevant conduct

and sua sponte enhanced Medina’s sentence to 108 months. The government did

not request an enhancement, and presented no evidence in support of the relevant

conduct finding. The enhancement was based largely on hearsay statements about

the murder in the Presentence Investigation Report (“PSR”). But most of the

evidence from the murder investigation had been lost or destroyed. In response to

Medina’s motion to dismiss the murder charge, counsel for the government stated,

in part:

               The undersigned counsel is unable to represent a good faith argument
       that the Defendant’s due process rights have not been violated. The evidence
       lost in this case is not one biological specimen that could have been tested
       by the defense. Unfortunately, the evidence that was lost and mishandled is
       literally a score of recorded interviews, and all of the biological evidence
       stored in the BIA’s horse trailer that was filled with evidence for which no
       chain of custody was completed and inexplicably left unattended and
       unlocked in Fort McDermitt, Nevada, for an undetermined number of weeks
       during the summer of 2017.
               Applying Sivilla, the government cannot contend that law
       enforcement agents, specifically those from the BIA, were unaware that this
       evidence was material to the murder charge against the Defendant. Indeed,
       what was mishandled and lost is the majority of the recorded interviews and
       almost the entirety of the biological and physical evidence in the murder

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      investigation. There is no question this evidence is material to both the
      prosecution and defense, and therefore, per Sivilla, the government candidly
      concedes Defendant’s constitutional rights were violated.
             For the murder count, the only possible mitigation the government has
      is to point out that there is an eyewitness to the death. However, the
      undersigned counsel candidly concedes that (1) two of the interviews that
      were lost were of this particular witness, which deprives the defense of
      potentially exculpatory and/or impeachment evidence; (2) this witness is the
      only ear and eyewitness to the crime; and (3) the undersigned counsel is
      informed by the defense that this witness has violent criminal history
      involving a knife. The loss of his recorded interviews, in conjunction with
      other lost and mishandled evidence, understandably and significantly
      impairs the Defendant’s ability to put on a legal defense at trial. As an
      officer of this Court, the undersigned counsel simply cannot state otherwise.

Government’s Response to Defendant’s Motion to Dismiss at 4–5. The district

court dismissed the murder charge based on the due process violations resulting

from the lost and mishandled evidence. See Order on Defendant’s Motion to

Dismiss at 5.

      On this record, we do not find “sufficient indicia of reliability to support [the

PSR statements’] probable accuracy” about the murder. See United States v. Berry,

258 F.3d 971, 976 (9th Cir. 2001) (recognizing that a district court may rely on

hearsay at sentencing, including hearsay statements in a PSR, if the statements

have “some minimal indicia of reliability” supporting their accuracy). As a result,

we vacate Medina’s sentence and remand for resentencing.

      The government argued that there is ample evidence other than the PSR

statements to support the district court’s finding that Medina murdered his father.

But the government did not introduce any evidence of the murder at Medina’s

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sentencing, and “we are not in a position to weigh conflicting evidence, which is

an important responsibility of the district court.” United States v. Jordan, 256 F.3d

922, 933 (9th Cir. 2001).

      On remand, the district court may conduct an evidentiary hearing to consider

evidence presented by the government that Medina murdered his father. See United

States v. Matthews, 278 F.3d 880, 889 (9th Cir. 2002) (en banc) (“[O]ur general

rule” is to “remand for resentencing without limitation on the district court.”). In

determining the applicable burden of proof the district court should consider “the

magnitude of the [factual] finding’s effect on the sentencing range.” United States

v. Valle, 940 F.3d 473, 479 (9th Cir. 2019).1

2.    Because we remand for resentencing, we do not reach Medina’s argument

that his 108-month sentence is substantively unreasonable. See United States v.

Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006)



1
  Generally factual findings underlying a relevant conduct enhancement must be
supported by a preponderance of the evidence if the sentencing enhancement does
not have a disproportionate effect on the sentence. See United States v. Collins,
109 F.3d 1413, 1420 (9th Cir. 1997). But “our case law makes clear that we must
apply the heightened clear and convincing standard based solely on the large
impact on [petitioner’s] Guidelines calculations reflected in [two factors].” Valle,
940 F.3d at 479 n.6. These factors are “whether the increase in the number of
offense levels is less than or equal to four” and “whether the length of the
enhanced sentence more than doubles the length of the sentence authorized by the
initial sentencing guideline range in a case where the defendant would otherwise
have received a relatively short sentence.” Id. at 479 (quoting Jordan, 256 F.3d at
928).

                                          4
3.    Medina has asked for a different sentencing judge on remand, arguing that

the original district judge would have substantial difficulty putting aside his belief

that Medina killed his father, and that the district judge said a high-end sentence

would be appropriate if this court holds the murder cannot be considered. We may

remand to a different district judge if a party can show personal biases or unusual

circumstances, based on an assessment of three factors: (1) whether on remand the

district judge can be expected to follow this court’s dictates; (2) whether

reassignment is advisable to maintain the appearance of justice; and (3) whether

reassignment risks undue waste and duplication. United States v. Peyton, 353 F.3d

1080, 1091 (9th Cir. 2003).

      Nothing suggests that the district judge would fail to follow this court’s

mandate. Nor do we need to reassign to maintain the appearance of justice. The

district judge felt strongly about the murder conduct, but he also mentioned

mitigating factors and he made no comments suggesting he could not be fair on

remand. Finally, as the government notes, reassignment would create undue waste.

      REVERSED and REMANDED for resentencing.




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