                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 07 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10291

              Plaintiff - Appellee,              D.C. No. 2:04-cr-00387-MCE-1

  v.
                                                 MEMORANDUM *
JESUS RODRIGUEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Morrison C. England, District Judge, Presiding

                          Submitted November 28, 2011 **
                             San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and PRO, District Judge.***

       The parties agree this matter should be remanded to the Eastern District of

California for consideration of a new trial motion based on newly discovered


        *
             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).
        ***
            The Honorable Philip M. Pro, District Judge for the U.S. District
Court for Nevada, sitting by designation.
evidence prior to this Court resolving the issues in this appeal. The parties dispute

only whether the Court should reassign this matter on remand. The Court denies

the request to reassign, as there is no evidence of personal bias and no unusual

circumstances exist to support reassignment. McSherry v. City of Long Beach, 423

F.3d 1015, 1023 (9th Cir. 2005); Hernandez v. City of El Monte, 138 F.3d 393, 402

(9th Cir. 1998). All issues raised in Appellant’s Opening Brief in this appeal are

preserved for later appeal in the event the district court denies the motion for new

trial.

         REMANDED.




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