                                                                           FILED
                            NOT FOR PUBLICATION                            APR 27 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30088

               Plaintiff - Appellee,             D.C. No. 1:13-cr-00028-EJL

  v.
                                                 MEMORANDUM*
CLARENCE EDWARD LANCASTER,

               Defendant - Appellant.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                             Submitted April 22, 2015**

Before:        GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.

       Clarence Edward Lancaster appeals from the district court’s judgment and

challenges the 63-month sentence imposed following his guilty-plea conviction for

bank larceny, in violation of 18 U.S.C. § 2113(b). We have jurisdiction under 28

U.S.C. § 1291, and we vacate and remand for resentencing.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Lancaster contends that the government implicitly breached the parties’ plea

agreement by commenting on the seriousness of his criminal history and other

information that was contained in the presentence report. We review this claim de

novo. See United States v. Heredia, 768 F.3d 1220, 1230 (9th Cir. 2014). We

agree that the government’s extended references at the sentencing hearing to

aggravating factors related to Lancaster’s offense and criminal history breached the

plea agreement. See id. at 1231 (“An implicit breach of the plea agreement occurs

if . . . the government agrees to recommend a sentence at the low end of the

applicable Guidelines range, but then makes inflammatory comments about the

defendant’s past offenses that do not ‘provide the district judge with any new

information or correct factual inaccuracies.’” (quoting United States v. Whitney,

673 F.3d 965, 971 (9th Cir. 2012)). Accordingly, we vacate and remand for

resentencing. See Whitney, 673 F.3d at 976. We remand to a different judge as

required by our circuit law “although in doing so we intend no criticism of the

district judge . . . and none should be inferred.” Id. (internal quotations omitted).

      VACATED and REMANDED for resentencing.




                                           2                                     14-30088
