                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50014

                Plaintiff-Appellee,             D.C. No.
                                                5:14-cr-00020-VAP-1
 v.

MATTHEW FRAZER, AKA Matthew                     MEMORANDUM*
Wade Frazer,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted November 4, 2019
                              Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,** District
Judge.

      In 2014, Matthew Frazer entered into a plea agreement under Federal Rule

of Criminal Procedure 11(c)(1)(C) in which he pleaded guilty to one count of

distribution and one count of possession of child pornography. The agreement


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Louis Guirola, Jr., United States District Judge for the
Southern District of Mississippi, sitting by designation.
provided for a sentencing range between 120 and 276 months imprisonment and

ten years of supervised release subject to a number of supervised release

conditions. The district court imposed a 276-month sentence, but this Court

vacated for resentencing because of ambiguity in the district court’s written

judgments. In 2017, the district court resentenced Frazer to 276 months

imprisonment but imposed some supervised release conditions that differed from

those imposed at the first sentencing hearing in 2014. After Frazer asked the

district court to impose only the conditions pronounced orally at his 2014

sentencing hearing, the district court issued a judgment confirming the 2017 terms,

but then issued an amended order that same day reverting to the 2014 terms

outlined in the district court’s written orders. Frazer sought clarification, and the

district court directed the clerk to amend the judgment to conform to the 2014 oral

pronouncement, but this was never done.

      Frazer challenges both his term of imprisonment and the new conditions of

supervised release. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291. We dismiss in part, vacate in part, and remand.

      We review whether a pleading defendant has waived his right to appeal and

whether a district court’s imposition of a higher sentence at resentencing was

vindictive de novo. United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016);

United States v. Horob, 735 F.3d 866, 869 (9th Cir. 2013) (per curiam).


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      1.     Because the district court imposed a sentence between 120 and 276

months, the appellate waiver in the plea agreement forecloses Frazer’s challenge to

the district court’s guidelines calculation. See United States v. Medina-Carrasco,

815 F.3d 457, 462 (9th Cir. 2016) (“[B]ecause Defendant expressly waived his

right to challenge sentencing guidelines determinations, a sentence ‘in accordance

with’ the plea agreement need not rest on a correct guidelines determination.”).

The appellate waiver provision provided that Frazer “gives up the right to appeal

any portion of [his] sentence” “provided the Court imposes a sentence within the

sentencing range [of 120 and 276 months imprisonment].” Moreover, review of

Frazer’s plea colloquy eliminates any possible doubt as to whether the waiver

encompasses Frazer’s challenge. Frazer expressly acknowledged that he was

“giving up [the] right to appeal the length of the sentence[,] the way [the district

court] calculated or arrived at the sentence,” “so as long as [the] sentence falls

within [the] range of 10 years to 23 years.” Frazer’s plea agreement guaranteed

him only a sentence within a range, and he received the benefit of that bargain.

See id. at 462–63 (dismissing appeal where defendant waived the right to challenge

“any sentencing guideline determinations” and received a sentence within the

prescribed range). We therefore dismiss the appeal to the extent Frazer challenges

the district court’s sentencing calculation.




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      2.     However, Frazer did not waive the right to challenge the supervised

released conditions imposed in 2017. The government concedes that Standard

Conditions 5, 6, and 14 of Frazer’s plea agreement were partially invalidated by

United States v. Evans, 883 F.3d 1154, 1162–64 (9th Cir. 2018). Therefore, we

vacate the supervised release sentence and remand to allow the district court to

impose valid conditions of supervised release. See United States v. Ped, No. 18-

50179, 2019 WL 6042813, at *4–5 (9th Cir. Nov. 15, 2019). We therefore need

not address Frazer’s remaining challenges to the 2017 supervised release

conditions or whether the district court effectively reimposed the conditions

pronounced orally in 2014; the district court can impose its intended conditions on

remand.

      3.     We reject Frazer’s argument that the district court acted vindictively

at resentencing. “Vindictiveness is presumed whenever the trial judge increases

the defendant’s sentence after a successful attack on the first conviction and the

reasons for the enhancement do not ‘affirmatively appear.’” Horob, 735 F.3d at

869 (quoting Nulph v. Cook, 333 F.3d 1052, 1057 (9th Cir. 2003)). Absent the

presumption, the burden remains on the defendant to show actual vindictiveness.

See id. at 871. But the record is clear that the district court originally intended to

sentence Frazer to 276 months imprisonment, having stated that it would

“sentenc[e] the defendant at the top range of the plea agreement” and would “abide


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by [its] stated intended sentence of 276 months.” It is also clear that, after Frazer’s

requests, the district court attempted to reimpose the supervised release conditions

to track those imposed at the 2014 sentencing hearing. Therefore, the presumption

of vindictiveness does not apply, see id. at 870 (finding that presumption of

vindictiveness does not apply where overall sentence was not increased), and

Frazer fails to offer evidence of actual vindictiveness.

      4.     We reject Frazer’s argument that reassignment to a different judge is

warranted on remand. We have observed that reassignment “is reserved for rare

and extraordinary circumstances.” Krechman v. Cty. of Riverside, 723 F.3d 1104,

1112 (9th Cir. 2013) (internal quotation mark omitted). “We make two inquires

when deciding whether to reassign a case” to a different judge on remand: (1)

“whether the district court has exhibited personal bias requiring recusal from [the]

case”; and (2) “whether ‘unusual circumstances’ warrant reassignment.” In re

Ellis, 356 F.3d 1198, 1211 (9th Cir. 2004) (en banc) (internal quotation marks

omitted). The record does not demonstrate either personal bias or unusual

circumstances requiring recusal.

      DISMISSED in part, VACATED in part, and REMANDED.




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