                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 11 2011

                                                                        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. 10-50089

              Plaintiff - Appellee,              D.C. No. 3:09-cr-02598-DMS-1

  v.
                                                 MEMORANDUM *
SILVESTRE AVILA HERRERA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Pasadena, California

Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
District Judge.**

       Defendant Silvestre Avila-Herrera appeals the sentence imposed for being a

deported alien found in the United States, in violation of 8 U.S.C. § 1326. We

vacate the sentence and remand the case for resentencing by a different judge.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
         The government acknowledges that the advisory sentencing guideline range

calculated at the time of sentencing was incorrect because there was a mistake in

the criminal history category. Avila-Herrera was not in fact sentenced to 9-1/2

years of incarceration for the 1995 conviction. Even if the miscalculation may

have had no impact on the sentence imposed, resentencing is required because the

harmless error doctrine does not apply to the miscalculation of a guidelines

sentence. United States v. Munoz-Camarena, 621 F.3d 967, 969-70 (9th Cir.

2010).

         We also conclude that the government breached the plea agreement by

failing to honor its obligation to recommend a sentence of 15 months. The

circumstances here were unusual, and it may well be that the district court was

never going to take that recommendation seriously once the presentencing report

disclosed Avila-Herrera’s history, notably his prior conviction and 46-month

sentence for the same offense. We are not persuaded, however, that the

government’s subsequent presentations were simply responses to the court’s

inquiries offered to fulfill the obligation of honesty to the court. See United States

v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000). Those statements were not

limited to correcting factual errors or providing the district court with new




                                           2
information but crossed the line into advocacy for a heavier sentence. United

States v. Mondragon, 228 F.3d 978, 980-81 (9th Cir. 2000).

      When the government has breached a plea agreement, the case must be

remanded for resentencing by a different judge. Id. at 981. We emphasize, as we

have before, that “[w]e remand to a different judge for re-sentencing because the

case law requires us to do so. We intend no criticism of the district judge by this

action, and none should be inferred.” Id. (quoting United States v. Johnson, 187

F.3d 1129, 1137 n. 7 (9th Cir. 1999)).

      Because it is necessary to remand for resentencing by a different judge, we

do not reach Avila-Herrera’s argument that the sentence of 51 months was

unreasonable.

      VACATED AND REMANDED for resentencing by a different district

judge.




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