                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                      DEC 12 2014
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30354

             Plaintiff - Appellee,               D.C. No. 1:13-cr-00115-BLW

   v.
                                                 MEMORANDUM*
SAMANTHA JO TACKITT,

             Defendant - Appellant.

                     Appeal from the United States District Court
                               for the District of Idaho
                      B. Lynn Winmill, Chief Judge, Presiding

                            Submitted December 5, 2014**

Before:       HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.

        Samantha Jo Tackitt appeals from the district court’s judgment and challenges

the 151-month sentence imposed following her guilty-plea conviction for

conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and

846. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for

        *
             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).
resentencing.

        The government concedes that Assistant United States Attorney Christian

Nafzger breached the parties’ plea agreement by using Tackitt’s immunized

admissions about her criminal conduct at sentencing.1 The parties dispute what

standard of review applies and whether Tackitt was prejudiced by the breach. We

conclude that remand is warranted even under plain error review because there is a

reasonable probability that the court’s choice of a high-end sentence was influenced

by the immunized admissions. See United States v. Whitney, 673 F.3d 965, 972-74

(9th Cir. 2012) (finding plain error where the government’s use of immunized

admissions was an implicit argument for a harsher sentence and, therefore, likely

“influenced the court's overall view of the appropriate sentence”). Accordingly, we

vacate and remand for resentencing. See id. 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.
1
    See Berger v. United States, 295 U.S. 78, 88 (1935).




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