                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 23 2015

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

UNITED STATES OF AMERICA,                        No. 13-50532

              Plaintiff - Appellee,              D.C. No. 8:13-cr-00005-CJC-1

  v.
                                                 MEMORANDUM*
ADRIAN ANDREW PALOMINO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted March 5, 2015
                               Pasadena California

Before: PREGERSON, PARKER**, and NGUYEN, Circuit Judges.

       Adrian Andrew Palomino appeals his sentence imposed following a guilty

plea to one count of attempted bank robbery, in violation of 18 U.S.C. § 2113(a).

Palomino argues that the government breached the terms of the parties’ written


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We vacate the sentence and remand for resentencing.

      In the plea agreement, the government promised to recommend a sentence

no higher than the low-end of the guidelines range. At the sentencing hearing,

after a victim spoke of the crime’s impact on him, the district court articulated its

guidelines calculations and a number of aggravating as well as mitigating factors

that would be relevant in the court’s sentencing decision. The court then noted

that, in its view, the sentence would “obviously” be within the guidelines range,

and the only issue remaining would be “where on this guideline range that sentence

should be.” Next, the court asked for the prosecutor’s views on “the appropriate

sentence here.” In response, the prosecutor focused exclusively on aggravating

factors—Palomino’s “substantial criminal history,” the failure of prior convictions

to deter him, and the “escalation in terms of the nature of [his] crimes.” When the

court interjected that drug addiction may have played a mitigating role and asked if

the prosecutor agreed, he answered that he did, but then immediately refocused on

aggravating facts, stating that the crimes occurred during a “short two-week

period” and the victim’s fear, as expressed at the hearing, underscored the

seriousness of the crimes. Finally, it was only after the court moved on to solicit

defense counsel’s views that the prosecutor interrupted to note that he still stood by


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the government’s promise in the plea agreement for a low-end sentence

recommendation.

      The government breaches a plea agreement if it promises to recommend a

particular disposition “and then either fails to recommend that disposition or

recommends a different one.” United States v. Heredia, 768 F.3d 1220, 1231 (9th

Cir. 2014). The breach may be implicit—for example, “when the government

obligates itself to make a recommendation at the low end of the guidelines range”

but introduces “information that serves no purpose but ‘to influence the court to

give a higher sentence.’” United States v. Whitney, 673 F.3d 965, 971 (9th Cir.

2012) (quoting United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999)).

Whether intended or not, that is what happened here. Contrary to the

government’s contention on appeal, there was no indication that the court was

considering a below-guidelines sentence. In fact, even before the court solicited

the parties’ positions, it indicated that the appropriate sentence would be within the

applicable guidelines range. Under these circumstances, the prosecutor’s repeated

and exclusive emphasis on aggravating factors, and quick dismissal of the one

mitigating factor of drug addiction raised by the court, implicitly urged a higher

sentence. Palomino’s substantial rights were plainly affected because there is a

“reasonable probability” that he “would have a received a different sentence.”


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United States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011). This is particularly

true here because the court stated, prior to hearing from the parties, that it had no

tentative sentence, and ultimately imposed a mid-range sentence.

      We remand to a different district judge, as our precedent requires, but we

intend no criticism of the sentencing judge. See Whitney, 673 F.3d at 976. We

need not address other arguments raised on appeal.1

      VACATED and REMANDED for resentencing, with instructions.




      1
        On appeal, Palomino appears to challenge the three-point enhancement for
brandishing a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(E), although he
stipulated to its application in the plea agreement. Of course, the district court is
not bound by the parties’ stipulation and may, on remand, reevaluate whether a pen
chained to a bank counter constitutes a dangerous weapon. The government
represented to us that the enhancement was negotiated based on the pen and the
threat of a bomb, but Palomino could not have brandished a fictitious bomb. See
U.S.S.G. § 1B1.1 cmt. n.1(C) (“[A]lthough the dangerous weapon does not have to
be directly visible, the weapon must be present.”).

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