                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 06 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10476

               Plaintiff - Appellee,             D.C. No. 2:11-cr-00221-RCJ

  v.
                                                 MEMORANDUM*
SHI YUAN LI,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert Clive Jones, Chief Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Shi Yuan Li appeals from the district court’s judgment and challenges the

60-month sentence imposed following his guilty-plea conviction for conspiracy to

manufacture marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii),

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

          *
             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).
for plenary resentencing before a different district judge.

      Li contends, and the government agrees, that the district court committed

reversible procedural error when it imposed sentence. Reviewing for plain error,

see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), we

agree. The district court plainly erred when, despite determining that Li was

eligible for safety valve relief under 18 U.S.C. § 3553(f), it expressly based its

sentence on the contrary finding that Li had failed to provide truthful information

to the government about his offense. See United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc) (“It would be procedural error for a district court . . . to

choose a sentence based on clearly erroneous facts.”). Furthermore, Li’s

substantial rights were affected because the district court emphasized that this

clearly erroneous fact justified the 60-month sentence. See United States v. Tapia,

665 F.3d 1059, 1061-63 (9th Cir. 2011) (finding effect on substantial rights where

record reflected that judge’s consideration of an improper factor affected the length

of the sentence). Finally, the error “seriously affected the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 1063 (internal quotations

omitted). “We have regularly deemed the fourth prong of the plain error standard

to have been satisfied where, as here, the sentencing court committed a legal error

that may have increased the length of a defendant’s sentence.” Id.


                                            2                                     12-10476
      Li has filed an unopposed motion for reassignment of this case to a new

district judge upon remand. In order to preserve the appearance of justice, we

grant Li’s motion. See United States v. Quach, 302 F.3d 1096, 1103-04 (9th Cir.

2002). We remand with instructions that the case shall be reassigned to a different

district judge for resentencing.

      VACATED and REMANDED for resentencing.




                                         3                                   12-10476
