                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 16 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-50076

              Plaintiff - Appellee,              D.C. No. 3:11-cr-05519-LAB-1

  v.
                                                 MEMORANDUM *
JUAN RODRIGUEZ-GARCIA,

              Defendant - Appellant.



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

                     Argued and Submitted November 5, 2012
                              Pasadena, California

Before: GRABER, IKUTA, and WATFORD, Circuit Judges.

       The district court concluded that the government did not breach the plea

agreement. We need not decide whether that determination is reviewed de novo or

for clear error because, under either standard of review, the determination is

erroneous.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 3

      The conviction documents that the government received after signing the

plea agreement confirmed that Rodriguez-Garcia had been convicted of violating

California Penal Code section 245(b). But that information was already disclosed

on Rodriguez-Garcia’s rap sheet, which stated that Rodriguez-Garcia had suffered

a parole violation with respect to the 245(b) count and had been ordered “to finish

term” on that count. Both entries, which were on the same page, contained the

identifying label “CNT:01 #D50749,” and no other entries contained a similar

identifier. A defendant cannot be ordered to finish a term of incarceration after

violating parole unless he was first convicted of the underlying crime. This entry

on Rodriguez-Garcia’s rap sheet therefore gave the government actual notice of

Rodriguez-Garcia’s 245(b) conviction.

      That the government’s lawyer failed to appreciate subjectively the

significance of the information disclosed on Rodriguez-Garcia’s rap sheet is

irrelevant. Nothing in footnote one of the plea agreement says that application of

the footnote turns on the government’s subjective lack of awareness of the

significance of information already within its possession. At the very least, the

footnote is ambiguous on that score, and Rodriguez-Garcia reasonably interpreted

the footnote to prevent the government from altering its sentencing

recommendation based on a conviction already disclosed on his rap sheet. See
                                                                          Page 3 of 3

United States v. De La Fuente, 8 F.3d 1333, 1337 & n.7 (9th Cir. 1993) (plea

agreement must be construed in accordance with the defendant’s objectively

reasonable understanding of its terms when he pleaded guilty).

      Because the government breached its obligations under the plea agreement,

we must vacate Rodriguez-Garcia’s sentence and remand the case to a different

district judge for resentencing. United States v. Alcala-Sanchez, 666 F.3d 571, 577

& n.2 (9th Cir. 2012). In doing so, we intend no criticism of the district court; we

remand to a different judge only because our case law demands this remedy. Id.

      Rodriguez-Garcia’s sentence is VACATED and the case REMANDED

for resentencing before a different judge.
                                                                            FILED
United States v. Rodriguez-Garcia, No. 12-50076                              NOV 16 2012

                                                                        MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, dissenting:                                         U .S. C O U R T OF APPE ALS




      The plea agreement in this case states:

      The parties agree that, if before defendant is sentenced, contrary or additional
      information is discovered concerning defendant’s criminal history that changes
      defendant’s applicable [specific offense characteristics], then the Government
      may recommend a sentence based upon any such changes.

      When the government entered this agreement, it knew that Rodriguez-Garcia

had a 2006 felony conviction for the transportation of marijuana. A month later,

the government received Rodriguez-Garcia’s criminal history report, which

revealed a 1987 assault conviction under section 245(b) of the California Penal

Code. Because the criminal history report was “contrary or additional information

. . . concerning defendant’s criminal history,” the government did not breach the

plea agreement when it changed its sentencing recommendation.

      The majority disagrees, claiming that a rap sheet in the government’s

possession at the time of the agreement disclosed that Rodriguez-Garcia had been

convicted of a violation of section 245(b). A fair review of the rap sheet shows

nothing of the sort.1 Even accepting the appellant’s claims about how the codes

and abbreviations in the rap sheet should be interpreted, nothing in the rap sheet



      1
          A copy of the rap sheet is attached.

                                             1
states that Rodriguez-Garcia was convicted of a violation of section 245(b).

Moreover, because other convictions are noted expressly on the rap sheet, the clear

inference is that Rodriguez-Garcia was not convicted of a section 245(b) violation.

Most important, the district court, which had twenty years of reviewing such rap

sheets, concluded that “the rap sheet is devoid of any disposition” for the section

245(b) charge. We are bound by this factual finding, because it is not clearly

erroneous.

      In reaching a contrary conclusion, the majority relies on a chain of

inferences viewed with the clarity of hindsight. The majority points out that

halfway down the page of coded rap sheet entries there is a reference to a parole

violation. Rodriguez-Garcia associates this reference with a prior entry that lists a

section 245(b) charge. Putting these two entries together, the majority infers that a

parole violation implies a prior conviction. Maj. Op. at 2. But the problem with

this inference is that the parole violation does not clearly refer to the section 245(b)

charge. In fact, the connection between the parole violation and the section 245(b)

charge is so unclear that it was missed by the experienced district court as well as

by both parties’ lawyers in the proceedings below. At a minimum, the government

cannot be charged with actual knowledge of information that can be inferred only

through aggressive interpretation and guesswork. See, e.g., United States v. Sutton,


                                           2
794 F.2d 1415, 1423 (9th Cir. 1986) (holding that the government’s agreement not

to file charges against the defendant based on “conduct known to the government”

referred only to criminal activity actually known to the government, not activity

“that reasonably could have been known”).

      Because the district court’s ruling was not clearly erroneous and because we

may not hold that the government had actual knowledge of a conviction merely

because it failed to make a chain of inferences, the government did not breach its

plea agreement. I dissent.




                                          3
