                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                       MAR 5 2015
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10571

             Plaintiff - Appellee,               D.C. No. 1:12-cr-00994-LEK-1

   v.
                                                 ORDER*
ANDREW AGARD,

             Defendant - Appellant.

                    Appeal from the United States District Court
                               for the District of Hawaii
                    Leslie E. Kobayashi, District Judge, Presiding

                      Argued and Submitted February 17, 2015
                                 Honolulu Hawaii

Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.

        In September 2012, Andrew Agard pled guilty to one count of Filing a False

Income Tax Return. His plea agreement stipulated that the relevant conduct would

be limited to tax years 2005-2007. Prior to sentencing, the government provided

the probation officer with information for tax years 2002-2004, and the information

for those years was incorporated as relevant conduct into the final presentence


        *
            This order is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
investigative report. At sentencing, the judge included 2002-2004 as relevant

conduct for calculating Agard’s sentence and restitution. Agard now appeals his

sentence, arguing that the government breached the plea agreement by providing the

information for 2002-2004 to the probation officer.

      Because, on the record before us, we are unable to determine whether the

information for tax years 2002-2004 was volunteered by the government or

requested by the probation officer (or another representative of the court), we

remand to the district court for the limited purpose of making supplementary

findings on this question. See United States v. Allen, 434 F.3d 1166, 1175-76 (9th

Cir. 2006).

      In doing so, we recognize that Agard does not seek rescission of the plea

agreement or specific performance as a remedy for the alleged breach. Instead,

Agard asks us to decrease the amount of restitution the district court ordered and to

strike the information for tax years 2002-2004 from the presentence investigation

report. We cannot provide the relief that Agard seeks. The only remedies

available if Agard shows that the government breached the plea agreement are

rescission or specific performance of the plea agreement. Brown v. Poole, 337 F.3d

1155, 1161 (9th Cir. 2003) (“The two available remedies are rescission of the

agreement and specific performance.”). Were we to grant specific performance, we

would be required to vacate Agard’s sentence in its entirety and remand for a new


                                          2
sentencing hearing before a different district judge. See Santobello v. New York,

404 U.S. 257, 262-63 (1971).

       The parties shall promptly notify the Clerk of this Court when the district

court has decided the remanded issue. Cf. Fed. R. App. P. 12.1(b). This panel

retains jurisdiction of this case.

LIMITED REMAND.




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