                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                       JAN 13 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30354

             Plaintiff - Appellee,               D.C. No. 1:13-cr-00115-BLW

   v.
                                                 AMENDED MEMORANDUM*
SAMANTHA JO TACKITT,

             Defendant - Appellant.

                     Appeal from the United States District Court
                               for the District of Idaho
                      B. Lynn Winmill, Chief Judge, Presiding

                            Submitted December 5, 2014**

Before:       HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.

        Samantha Jo Tackitt appeals from the district court’s judgment and challenges

the 151-month sentence imposed following her guilty-plea conviction for

conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and

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

        *
             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).
resentencing.

        The government concedes that the government breached the parties’ plea

agreement by using Tackitt’s immunized admissions about her criminal conduct at

sentencing.1 The parties dispute what standard of review applies and whether

Tackitt was prejudiced by the breach. We conclude that remand is warranted even

under plain error review because there is a reasonable probability that the court’s

choice of a high-end sentence was influenced by the immunized admissions. See

United States v. Whitney, 673 F.3d 965, 972-74 (9th Cir. 2012) (finding plain error

where the government’s use of immunized admissions was an implicit argument for

a harsher sentence and, therefore, likely “influenced the court's overall view of the

appropriate sentence”). Accordingly, we vacate and remand for resentencing. See

id. at 976. We remand to a different judge as required by our circuit law “although

in doing so we intend no criticism of the district judge . . . and none should be

inferred.” Id. (internal quotations omitted).

        VACATED and REMANDED for resentencing.



1
    See Berger v. United States, 295 U.S. 78, 88 (1935).




                                          2                                    13-30354
