                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 25 2016

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


                               FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-50443

       Plaintiff - Appellee,                     D.C. No. 2:04-cr-00263-SVW

       v.
                                                 MEMORANDUM*
 LORENZO ESPINOZA,

       Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                     Submitted and argued on October 19, 2015
                               Pasadena, California

Before: PREGERSON, CALLAHAN, Circuit Judges, and BASTIAN, District
Judge.**
       Lorenzo Espinoza appeals his sentence of 60 months that was imposed after

we remanded the case for re-sentencing on both procedural and substantive

grounds. He asks that his sentence be remanded to 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 Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
      On appeal, we first consider “whether the district court committed

significant procedural error, then we consider the substantive reasonableness of the

sentence.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (citing Gall v.

United States, 552 U.S. 38, 51 (2007)). As Espinoza did not raise his procedural

objections in the district court, we review for plain error. United States v.

Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010). The substantive reasonableness

of a sentence is reviewed for abuse of discretion. Gall, 552 U.S. at 51.

      1.    The district court violated Rule 32 when it relied on confidential

Presentence Investigative Reports (PSIR) of other defendants without giving notice

to the parties. This was plain error because relying on extra-record materials

affected Espinoza’s due process rights, and affected the fairness and integrity of

the judicial proceedings.1 In the first sentencing hearing, the district court

concluded the record did not support the leadership enhancement. At the second



      1
       Under plain error review:
  an appellate court may, in its discretion, correct an error not raised at
  trial only where the appellant demonstrates that (1) there is an “error”;
  (2) the error is “clear or obvious, rather than subject to reasonable
  dispute”; (3) the error “affected the appellant’s substantial rights,
  which in the ordinary case means” it “affected the outcome of the
  district court proceedings”; and (4) “the error seriously affect[s] the
  fairness, integrity or public reputation of judicial proceedings.”
United States v. Marcus, 560 U.S. 258, 262 (2010) (citing Puckett v.
United States, 556 U.S. 129, 135 (2009)).
                                            2
hearing, the district court imposed the leadership enhancement after consulting the

confidential PSIRs of the other defendants, which suggests that the use of these

reports affected the outcome of the sentencing proceedings.

      2.   The district court committed plain error in denying the government an

opportunity to speak. United States v. Urrutia-Contreras, 782 F.3d 1110, 1113

(9th Cir. 2015) (noting that “imposition of a sentence without hearing the

government’s recommendation may create the appearance of the court standing in

for the government, calling into question the impartiality of the sentencing court”).

In this case, the government recommended a sentence below the ultimate sentence

imposed by the court. As such, the failure to permit the government to speak was

not harmless. Id. (noting that government support can add substantially to the

persuasiveness of a defendant’s sentencing argument). Here, it is not clear that the

government’s oral recommendation at the hearing would have had no effect on the

district court’s conclusion as to the appropriate prison term.

      3.   The government concedes the district court made a one-level error in the

sentencing guideline calculations.

      4.   Espinoza asks that we reassign the case to a different district judge. The

general rule is that “absent unusual circumstances, resentencing is to be done by

the original sentencing judge.” United States v. Acosta-Chavez, 727 F.3d 903, 910


                                           3
(9th Cir. 2013) (quoting United States v. Waknine, 543 F.3d 546, 560 (9th Cir.

2008)). Absent any allegations of bias, we consider the following three factors in

determining whether “unusual circumstances” exist:

        (1) whether the original judge would reasonably be expected upon
        remand to have substantial difficulty in putting out of his or her mind
        previously expressed views or findings determined to be erroneous or
        based on evidence that must be rejected, (2) whether reassignment is
        advisable to preserve the appearance of justice, and (3) whether
        reassignment would entail waste and duplication out of proportion to
        any gain in preserving appearance of fairness.
Id. (citations omitted).

      We see no reason to depart from our general rule in this case. There is no

reason to believe that the district court will not follow the law on remand. We

decline to exercise our discretion to reassign this matter.

      5. We vacate the sentence for procedural error and remand for

resentencing. We reject Espinoza’s other claims of procedural error and express no

view as to whether a sixty-month sentence is or is not substantively reasonable for

the crimes of which Espinoza was convicted.

VACATED and REMANDED.




                                           4
                                                                                  FILED
USA v LORENZO ESPINOZA 13-50443                                                    FEB 25 2016

                                                                            MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, dissenting:                                             U.S. COURT OF APPEALS



      I respectfully dissent. As Espinoza did not raise his procedural objections in

the district court, we review for plain error. United States v. Blinkinsop, 606 F.3d

1110, 1114 (9th Cir. 2010). Espinoza bears the burden of persuading this Court

that the error affected the outcome of the proceeding. United States v. Ameline,

409 F.3d 1073, 1078 (9th Cir. 2005). Espinoza has not shown that the imposition

of the role enhancement or denying the government the opportunity to speak has

“affected [his] substantial rights,” and thus he has not demonstrated plain error.

United States v. Marcus, 560 U.S. 258, 262 (2010) (citing Puckett v. United States,

556 U.S. 129, 135 (2009)).

      1.     It is doubtful that the district court relied on the confidential

Presentence Investigative Reports (PSIRs) of the other defendants in sentencing

Espinoza. In the second sentencing hearing, the district court stated that it had

improperly relied on United States v. Quigley, 373 F.3d 133 (D.C. Cir. 2004) in the

original sentencing. Because the district court no longer felt constrained by

Quigley, it found that Espinoza was eligible for a leadership enhancement.

Therefore, the district court did not need to rely on confidential PSIRs to make this

determination.

                                           1
      Even if the court had relied on confidential PSIRs, Espinoza did not

demonstrate that such reliance changed the outcome of the proceedings. Espinoza

does not allege that any of the facts from the PSIRs are false or inaccurate.

Espinoza, citing United States v. Yamashiro, 788 F.3d 1231 (9th Cir. 2015),

contends that reliance on the reports is enough to demonstrate prejudice. However,

in Yamashiro, we held that there was “structural error.” 788 F.3d at 1234–1236

(defendant was denied counsel during a portion of his sentencing hearing).

Espinoza has not alleged a “structural error,” and therefore must demonstrate that

he suffered prejudice as a result of the court’s alleged reliance on the confidential

PSIRs. As he has not shown prejudice, there is no plain error.

      2.      Espinoza has not demonstrated that failure to allow the government

the opportunity to speak affected the outcome of his proceeding. In United States

v. Waknine, 543 F.3d 546, 553–554 (9th Cir. 2009), we held that even though the

government had been denied the opportunity to defend its sentencing choice,

because its position was clear from the sentencing memorandum, the defendant did

not demonstrate prejudice. Similarly, in this case the government filed its

sentencing position with the court before the first and second sentencing hearing,

thus making their position clear.

      United States v. Urrutia-Contreras, 782 F.3d 1110 (9th Cir. 2015), on which

                                           2
the majority relies, is distinguishable, as it concerned denying the government the

opportunity to speak during a revocation proceeding. However, Urrutia-Contreras

specifically distinguished Waknine, noting that “revocation proceedings do not

typically involve written sentencing positions submitted before the hearing.”

Urrutia-Contrares, 782 F.3d at 1114. As Espinoza challenges his resentencing

based in part on a sentencing memorandum, Waknine and not Urrutia-Contreras,

is our governing precedent. Accordingly, Espinoza’s failure to demonstrate that

denying the government the opportunity to speak affected his substantial rights is

fatal to his claim under the applicable plain error standard of review.

      3.     The government concedes a one-level calculation error in the

sentencing guidelines, but United States v. Munoz-Camarena, 631 F.3d 1028, 1030

(9th Cir. 2011) holds that guideline calculation errors are subject to harmless error

review. In this case, the district court’s incorrect guideline range (15-17) “overlaps

substantially” with the correct guidelines range (16), and thus was harmless. Id. at

1030 n.5.

      I concur in the decision not to reassign the case to another judge.

      For the foregoing reasons, I would affirm the judgment in its entirety.1


      1
       Importantly, the majority reversed on procedural grounds only, and
expressed no view as to the substantive reasonableness of Espinoza’s sentence.

                                          3
