                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 
                Plaintiff-Appellee,              No. 06-30120
               v.                                 D.C. No.
SOLOMON BITTON SIMTOB,                         CR-96-00025-SEH
             Defendant-Appellant.
                                          

UNITED STATES OF AMERICA,                 
                Plaintiff-Appellee,              No. 06-30275
               v.
                                                  D.C. No.
                                               CR-05-00130-SEH
SOLOMON BITTON SIMTOB, aka
Simon Simtob,                                     OPINION
            Defendant-Appellant.
                                          
        Appeals from the United States District Court
                 for the District of Montana
         Sam E. Haddon, District Judge, Presiding

                    Argued and Submitted
            February 8, 2007—Seattle, Washington

                       Filed May 11, 2007

    Before: Raymond C. Fisher and Richard C. Tallman,
    Circuit Judges, and David Alan Ezra,* District Judge.

                     Opinion by Judge Ezra

  *The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                                5563
5566               UNITED STATES v. SIMTOB


                         COUNSEL

Anthony R. Gallagher, Federal Defender, David F. Ness
(argued), Assistant Federal Defender, Great Falls, Montana,
for the appellant.

William M. Mercer, United States Attorney, Carl E. Rostad
(argued), Assistant United States Attorney, Great Falls, Mon-
tana, for the appellee.


                         OPINION

EZRA, District Judge:

  Appellant Solomon Bitton Simtob raises three issues in this
consolidated appeal from the district court’s sentence follow-
                   UNITED STATES v. SIMTOB                5567
ing revocation of his supervised release and from his convic-
tion and sentence. We first address whether, in light of United
States v. Miqbel, 444 F.3d 1173 (9th Cir. 2006), the sentence
imposed following revocation of Simtob’s supervised release
was reasonable. We next address whether the district court
abused its discretion when it failed to conduct an inquiry of
a juror concerning a complaint that Simtob was “eye-balling”
the juror and that the juror felt “threatened.” Finally, Simtob
challenges the reasonableness of the sentence imposed for his
conviction.

   Because the district court rendered the decision to revoke
Simtob’s supervised release without the benefit of Miqbel, we
vacate the revocation sentence and remand for reconsideration
in light of our directives set forth in Miqbel and clarified
herein. We also vacate Simtob’s conviction and remand for
the district court to determine whether Simtob’s alleged mis-
conduct toward the juror resulted in a biased jury. Because we
vacate Simtob’s conviction, we also vacate Simtob’s sentence
for that conviction, rendering Simtob’s challenge to the rea-
sonableness of his sentence moot.

              Factual and Procedural History

   On June 21, 1996, Simtob was indicted on various federal
drug charges (“1996 indictment”). Following a jury trial held
in April 1997, Simtob was convicted of the following
offenses: Count I, Conspiracy to Distribute Cocaine in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 846; Count II, Possession
of Cocaine with Intent to Distribute in violation of 21 U.S.C.
§ 841(a)(1); and Count IV, Possession of Cocaine with Intent
to Distribute in violation of 21 U.S.C. § 841(a)(1). On July
29, 1997, Simtob was sentenced to 41 months imprisonment
followed by a six year term of supervised release.

  On August 4, 2005, a United States Probation Officer filed
a petition to revoke Simtob’s supervised release on the 1996
indictment. Almost two months later, on September 26, 2005,
5568                 UNITED STATES v. SIMTOB
Simtob was indicted again on federal drug charges and on an
obstruction of justice charge that flowed from the conduct
underlying the petition to revoke (“2005 indictment”). Conse-
quently, the revocation proceedings on the 1996 indictment
were stayed pending the outcome of the prosecution on the
2005 indictment.

   On December 27 and 28, 2005, a jury trial was held on the
2005 indictment. At the end of the first day, in open court and
outside of the presence of the jury, the district court informed
counsel that a juror had reported that Simtob had been “eye-
balling” the juror and that the juror felt threatened by that
conduct. The court then cautioned Simtob that neither he nor
anyone else was allowed to intimidate anyone in the court-
room. The court further stated that, upon indication of such
conduct in the future, it would take appropriate measures to
deal with the situation at that time, and it again emphasized
its intolerance of such behavior. When asked if the court’s
instructions were clear, Simtob responded that they were, and
that he had not looked at anyone in particular. “I look at
everybody,” Simtob claimed. The district court did not make
any inquiry of the complaining juror regarding the “eye-
balling” incident.

   At the start of the second day of trial, Simtob’s counsel
raised a concern that, because of Simtob’s alleged miscon-
duct, a juror may have made up his or her mind about the ver-
dict already. Counsel asked that the juror be replaced with an
alternate to avoid any problems associated with the juror’s
perceptions. The Government responded that, if any action
were taken, which it thought unnecessary, the court should
inquire of the juror or hold an in-camera hearing to determine
whether the juror in fact had prematurely made up his or her
mind about Simtob’s guilt. The district court ruled that the
jury had been “repeatedly admonished not to make up its
mind about any issue,” that it was “absolutely satisfied that
the jury ha[d] taken those admonishments appropriately,” and
that it saw “no reason to inquire further into th[e] matter . . . .”
                    UNITED STATES v. SIMTOB                 5569
In reaching that conclusion, the court emphasized that Simtob
“disavowed having engaged in any such conduct.” Ultimately,
the court decided that the “issue is best left where it is,” see-
ing no need to replace the juror.

   Simtob was subsequently convicted on Counts I and II for
possession with intent to distribute methamphetamine in vio-
lation of 21 U.S.C. § 841(b)(1)(B) and distribution of
methamphetamine in violation of 21 U.S.C. § 841(b)(1)(C)
(“2005 conviction”). Simtob was acquitted on the obstruction
charge.

   On February 8, 2006, before Simtob was sentenced for the
2005 conviction, the court held a hearing on the revocation of
supervised release concerning the 1996 indictment. The dis-
trict court found that, contrary to Simtob’s arguments, Simtob
was on supervised release when he committed the violations
leading to the 2005 conviction. Emphasizing that the offense
underlying the revocation was the same offense that led to
Simtob’s 2005 conviction, the court found that Simtob vio-
lated the terms of his supervised release, the violation was a
Class A violation, and the severity of the conduct required
revocation. The court concluded that the evidence, as a whole,
demonstrated “a continued pattern of unlawful behavior by
[Simtob] that is representative of what [he] [had] done over
the years on a repeated basis.” The court, moreover, deter-
mined that Simtob’s “very serious conduct” warranted impo-
sition of the maximum statutory penalty. It also found that the
Guidelines range was “inadequate to address the seriousness
of the defendant’s violation, and all of the circumstances of
the current violations.” Consequently, the court sentenced
Simtob to the statutory maximum of three years in custody
with no supervised release.

  On April 3, 2006, the court sentenced Simtob for the 2005
conviction, finding the recommended Guidelines range of 78
to 97 months inadequate and sentencing Simtob to 240
months imprisonment on Count I and to 97 months on Count
5570               UNITED STATES v. SIMTOB
II, to be served concurrently, followed by eight years of
supervised release on Count I and six years on Count II, to be
served concurrently.

            Jurisdiction and Standard of Review

   We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review sentences, including those imposed upon revocation of
supervised release, for reasonableness. See Miqbel, 444 F.3d
at 1176 n.5 (citing Booker, 543 U.S. at 261-62). We review
a district court’s decision not to conduct an inquiry of a juror
or to hold an evidentiary hearing concerning a defendant’s
alleged misconduct toward a juror for an abuse of discretion.
See United States v. Long, 301 F.3d 1095, 1101 (9th Cir.
2002) (per curiam).

                          Discussion

       I.   Reasonableness of the revocation sentence

   Simtob challenges the district court’s imposition of his sen-
tence upon revocation of his supervised release. Specifically,
Simtob argues that his revocation sentence is unreasonable
because the court relied on the seriousness of the offense
underlying the revocation when determining his sentence, in
contravention of Miqbel. The Government responds that, even
if that consideration were improper, the court rested its sen-
tencing decision on other permissible factors, such as Sim-
tob’s continued pattern of unlawful conduct. Thus, the
Government argues that Simtob’s sentence should stand.

   [1] On February 8, 2006, the district court sentenced Sim-
tob to the maximum statutory penalty of three years for violat-
ing his supervised release. Since then, we have issued a
decision that provides further guidance concerning what dis-
trict courts may properly consider in revocation sentencing.
See Miqbel, 444 F.3d 1173. In Miqbel, we determined that
certain considerations under 18 U.S.C. § 3553(a)(2)(A)
                   UNITED STATES v. SIMTOB                 5571
(2003) that are proper for general sentencing purposes —
such as the need to “promote respect for the law” and “to
reflect the seriousness of the [underlying] offense” — are not
proper for the purpose of sentencing upon revocation of
supervised release. Miqbel, 444 F.3d at 1181-82. That is so
because the section of the statute dealing with revocation sen-
tencing considerations, 18 U.S.C. § 3583(e), specifically
omits 18 U.S.C. § 3553(a)(2)(A) from consideration. See id.
Additionally, given the purpose of sentencing upon revocation
of supervised release to sanction for a “breach of trust,” the
considerations under 18 U.S.C. § 3553(a)(2)(A) would be
inappropriate and unnecessary to achieve that purpose. See
United States Sentencing Guidelines Manual (“U.S.S.G.M.”)
Ch.7, Pt. A(3)(b) (2006). Accordingly, we held that “a court
may appropriately sanction a violator for his ‘breach of trust,’
but may not punish him for the criminal conduct underlying
the revocation.” Miqbel, 444 F.3d at 1182.

   [2] We take this opportunity to clarify the directives set
forth in Miqbel. Contrary to Simtob’s contention, we did not
set forth a blanket proposition that a court in no circumstances
may consider the seriousness of the criminal offense underly-
ing the revocation. The seriousness of the offense underlying
the revocation, though not a focal point of the inquiry, may
be considered to a lesser degree as part of the criminal history
of the violator. As the Sentencing Guidelines Manual indi-
cates, “at revocation the court should sanction primarily the
defendant’s breach of trust, while taking into account, to a
limited degree, the seriousness of the underlying violation and
the criminal history of the violator.” U.S.S.G.M. Ch.7, Pt.
A(3)(b) (emphasis added). Indeed, 18 U.S.C. § 3583(e) spe-
cifically directs sentencing courts to consider “the nature and
circumstances of the offense and the history and characteris-
tics of the defendant,” as set forth in 18 U.S.C. § 3553(a)(1).

  To ignore the new violation underlying the revocation
entirely would be to ignore a key predictor of a violator’s
potential for reintroduction into society without relapse. See,
5572                UNITED STATES v. SIMTOB
e.g., United States v. Tadeo, 222 F.3d 623, 626 (9th Cir.
2000) (finding no abuse of discretion where the court found
that the use of narcotics in violation of supervised release cre-
ated a risk that the defendant would commit serious crimes
because some of his past criminal activity occurred while
under the influence). The history of the violator, when com-
bined with the violator’s most recent criminal offenses, and
particularly when similar to the past transgressions, is indica-
tive of the violator’s propensity for recidivism and inability to
integrate peacefully into a community. See id.; U.S.S.G.M.
Ch.7, Pt. A(4) (2006) (determining “that the purpose of . . .
supervised release should focus on the integration of the vio-
lator into the community, while providing the supervision
designed to limit further criminal conduct”); see also 18
U.S.C. §§ 3553(a)(2)(B) (2003) (affording deterrence as one
consideration) and 3553(a)(2)(C) (2003) (protecting the pub-
lic from further crimes as another); 18 U.S.C. § 3583(e) (per-
mitting the preceding factors for consideration in revocation
sentences). A history of, for example, drug-related offenses,
combined with a drug-related offense underlying the revoca-
tion, as is the case here, creates a greater likelihood that the
violator will relapse into the same or similar criminal activity.
A violator who, after committing an offense and being placed
on supervised release for that offense, again commits a similar
offense is not only more likely to continue on that path, but
also has demonstrated to the court that the violator has little
respect for its command. Because the district court’s trust in
the violator’s ability to coexist in society peacefully has been
broken to a greater degree than if the violator had committed
a minor offense of a dissimilar nature, greater sanctions may
be required to deter future criminal activity. Consequently, if
the nature and the severity of the underlying offense were
removed from the equation altogether, the court’s ability to
predict the violator’s potential for recidivism and to punish
the violator for the violator’s full breach of trust (and, ulti-
mately, to deter the violator and to protect the public) would
be impaired significantly.

  [3] A district court may not impose a revocation sentence
solely, or even primarily, based on the severity of the new
                    UNITED STATES v. SIMTOB                 5573
criminal offense underlying the revocation, as the sentence for
that offense is left to the sentencing court. See Miqbel, 444
F.3d at 1182; see also U.S.S.G.M. Ch.7, Pt. A(3)(b) (viewing
“the court with jurisdiction over the criminal conduct leading
to revocation [a]s the more appropriate body to impose pun-
ishment for that new criminal conduct”). Any new sentence
imposed for the underlying offense will be consecutive to any
sanctions imposed for violating the court’s trust. See U.S.S.G.
§ 7B1.3(f) (2004) (“Any term of imprisonment imposed upon
the revocation of . . . supervised release shall be ordered to
be served consecutively to any sentence of imprisonment that
the defendant is serving, whether or not the sentence of
imprisonment being served resulted from the conduct that is
the basis of the revocation of . . . supervised release.” (empha-
sis added)). The idea behind that punishment scheme is that
the violator should be punished both for breaching the court’s
trust and for the new criminal conduct, as each act is sepa-
rately and distinctly offensive. See U.S.S.G.M. Ch.7, Pt.
A(3)(b) (commenting that, consistent with the “breach of
trust” theory that the Commission adopted as the approach to
revocation sentencing, “the sanction for the violation of trust
should be in addition, or consecutive, to any sentence
imposed for the new conduct”). Notwithstanding this scheme,
a district court may properly look to and consider the conduct
underlying the revocation as one of many acts contributing to
the severity of the violator’s breach of trust so as not to pre-
clude a full review of the violator’s history and the violator’s
likelihood of repeating that history. See United States v.
Brown, 203 F.3d 557, 558 (8th Cir. 2000) (per curiam) (con-
sidering, at a revocation hearing, the seriousness of the defen-
dant’s criminal history and the frequency of the defendant’s
violations of supervised release). This is fully consistent with
the Supreme Court’s mandate in Booker that sentencing
courts look to a defendant’s full background when sentencing
the defendant. See 543 U.S. at 251-54.

  [4] Here, the weight that the district court gave the serious-
ness of Simtob’s criminal conduct underlying the revocation
5574               UNITED STATES v. SIMTOB
of supervised release is unclear. The district court cited Sim-
tob’s “continued pattern of unlawful behavior,” a permissible
consideration under § 3583(e), but it also stated that the
offense leading to the revocation of supervised release was
“very serious conduct” and it found the “Chapter 7 policy
statements and [G]uideline[s] range . . . inadequate to address
the seriousness of [Simtob’s] violation, and all of the circum-
stances of the current violations.” To the extent that the dis-
trict court placed special emphasis on the seriousness of
Simtob’s new criminal conduct as the primary consideration
for the sentence upon revocation of supervised release, the
court’s sentence would be unreasonable. Because the district
court rendered its decision without the benefit of Miqbel, we
vacate and remand for re-sentencing in light of the permissi-
ble considerations set forth in Miqbel and clarified herein.

                   II.   Possible juror bias

   Simtob contends that because the juror indicated that his
alleged act of “eye-balling” the juror made the juror feel
“threatened,” the juror’s perception of the event may have
influenced the verdict on his underlying drug convictions.
Simtob further argues that the court failed to take appropriate
corrective measures to rectify the perceived problem. Thus,
Simtob requests that we remand for an evidentiary hearing on
this issue. The Government responds that an evidentiary hear-
ing was unnecessary because Simtob denied having engaged
in any such conduct and the court acted appropriately given
the relatively neutral nature of the conduct. The Government
further argues that, even if the court should have pursued the
matter further, any error was harmless, given the “overwhelm-
ing evidence” on the drug counts and the acquittal on the
obstruction count.

  [5] We review “a trial court’s decision regarding jury inci-
dents . . . for [an] abuse of discretion.” Long, 301 F.3d at
1101. A defendant has a Sixth Amendment right to “a verdict
by impartial, indifferent jurors” to avoid any bias or prejudice
                    UNITED STATES v. SIMTOB                  5575
that might affect the defendant’s right to a fair trial. Dyer v.
Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc); see
also United States v. Soulard, 730 F.2d 1292, 1305 (9th Cir.
1984). Improper influence or bias of a single juror would
affect that right. See United States v. Gonzalez, 214 F.3d
1109, 1111 (9th Cir. 2000). When there has been improper
contact with a juror or any form of jury tampering — whether
direct or indirect — we apply a presumption of prejudice.
United States v. Rutherford, 371 F.3d 634, 641 (9th Cir.
2004); see also Remmer v. United States, 347 U.S. 227, 229
(1954). The burden rests on the Government to rebut this pre-
sumption and to demonstrate that any alleged jury improprie-
ties were harmless beyond a reasonable doubt. See
Rutherford, 371 F.3d at 641; Remmer, 347 U.S. at 229.

   [6] Despite the lack of evidence that Simtob had any direct
contact with the jury, the presumption of prejudice applies
here because “even indirect coercive contacts that could affect
the peace of mind of the jurors give rise to the Remmer pre-
sumption.” Rutherford, 371 F.3d at 642 n.6 (citing United
States v. Angulo, 4 F.3d 843 (9th Cir. 1993)). That at least one
juror’s “peace of mind” was affected is obvious from the dis-
trict court’s assertion that the juror claimed that he or she felt
threatened by Simtob. The Government, therefore, bears the
burden of rebutting the presumption of prejudice.

   This the Government cannot do on the record before us.
When a source presents the court with a “colorable claim of
juror bias,” the court must make some inquiry of the juror,
whether through an in camera hearing or otherwise, to deter-
mine whether the allegedly affected juror is incapable of per-
forming the juror’s functions impartially. See Dyer, 151 F.3d
at 974-75. A court has “considerable discretion” in determin-
ing how to handle such a claim and “in defining its nature and
extent,” United States v. Soulard, 730 F.2d at 1292, 1305 (9th
Cir. 1984), so long as the investigation does not extend
beyond permissible limits of inquiry. See United States v.
Elias, 269 F.3d 1003, 1020 (9th Cir. 2001).
5576                UNITED STATES v. SIMTOB
   [7] From the record, we cannot discern whether Simtob’s
alleged conduct of “eye-balling” impaired the juror’s ability
to act impartially. The district court conducted no inquiry of
the juror from which it could draw any inferences of the
juror’s impartiality, even though the juror claimed, during
trial, that “he or she felt that [Simtob] was staring at [him or
her] in a threatening manner.” (Emphasis added.) Nor did the
district court consider the possibility that the juror may have
communicated his or her perception of a threat to other jurors.
Cf. Angulo, 4 F.3d at 847 (remanding because the district
court excused a juror who felt threatened due to an anony-
mous phone call but “never explained [the excused juror’s]
absence to the other jurors, who knew she had received the
threatening telephone call” or “question[ed] the other jurors
about what effect the threat to [the excused juror] and her sub-
sequent dismissal from venire had on them”). The district
court did not issue any curative instructions to the jury regard-
ing the perceived threat, nor did it address the jury about the
incident in any way. Cf. United States v. Owens, 426 F.3d
800, 804-05 (6th Cir. 2005) (refusing to remand where, after
a complaining juror had “expressed fear,” “[u]pon the agree-
ment of both parties, the court instructed the courtroom dep-
uty to advise the jury that . . . [the defendant] does not pose
a security risk to anyone”). Thus, we cannot agree with the
district court’s apparent satisfaction that Simtob’s Sixth
Amendment rights had not been jeopardized merely because
Simtob “disavowed” any such conduct and the court previ-
ously had admonished the jury members not to make up their
minds about any issue.

   Without any inquiry whatsoever into the juror’s state of
mind or communications with other jurors, the district court
had no way of knowing whether any juror harbored lingering
bias from the eye-balling incident. Although helpful to aid our
understanding of the measures that the court undertook to rec-
tify the perceived problem, the district court’s handling of the
incident sheds no light on the juror’s actual state of mind. The
question of bias is still open, and it is one that we cannot
                        UNITED STATES v. SIMTOB                        5577
answer on this record because it is a factual determination for
the district court to make.

   [8] Because the district court made no inquiry of the juror
when the juror voiced his or her concern that the defendant’s
alleged act of eye-balling the juror made the juror feel threat-
ened, it abused its discretion in failing to take proper remedial
action on the facts of this case. We, therefore, vacate Simtob’s
conviction and remand for the district court to recall the com-
plaining juror and to undertake whatever inquiry it deems
appropriate — whether through an in camera hearing or other-
wise — to determine whether the perceived threat impaired
that or any other juror’s ability to act fairly and impartially.1
Upon remand, the district court must make findings about
possible bias that the affected juror or any other juror may
have harbored as a result of the alleged eyeballing incident.
If the district court finds no such impairment, it can, of
course, reinstate the conviction.

   Before concluding, we acknowledge the Government’s
argument that the fact that Simtob was acquitted on one
charge may diminish the possibility that bias was present.
That Simtob was acquitted on one charge, however, does not
erase the potential that bias might have contributed to the
juror’s ability (or inability) to act fairly and impartially with
respect to the other charges. There are many reasons that
could explain away the acquittal, including ones that would
work against the Government’s argument, seeing as the
acquittal could have been caused by the juror’s fear of retalia-
  1
    We recognize the difficulties in recalling a juror post-verdict, such as
memory deficiency, locating the juror, and inconvenience to the juror. We
also acknowledge the hesitancy that courts face in “haul[ing] jurors in
after they have reached a verdict in order to probe for potential instances
of bias, misconduct or extraneous influences.” United States v. Sun Myung
Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). Nonetheless, we find that there
is a substantial, non-speculative ground that justifies such an action in the
instant case to ensure that Simtob’s Sixth Amendment rights have not
been violated. See id.
5578               UNITED STATES v. SIMTOB
tion. Simtob’s partial acquittal, therefore, does not change our
decision to vacate and remand.

 III.   Reasonableness of sentence for the 2005 conviction

   Simtob challenges the reasonableness of the district court’s
decision to depart from the Guidelines when sentencing Sim-
tob for the 2005 conviction based on the court’s determination
that the Guidelines did not adequately take into account the 18
U.S.C. § 3553(a) sentencing factors. Because we vacate Sim-
tob’s 2005 conviction, however, we also vacate the sentence
imposed for it, mooting Simtob’s challenge.

                         Conclusion

   Because the district court’s revocation sentencing decision
was made without the benefit of Miqbel, we vacate and
remand for re-sentencing in light of that decision and the clar-
ifications herein. We likewise vacate Simtob’s 2005 convic-
tion and remand for the district court to recall the affected
juror and to determine whether the juror was capable of per-
forming his or her duties impartially during trial and to take
appropriate action as it finds warranted in light of the juror’s
response. Because we vacate Simtob’s conviction, we also
vacate his sentence, mooting his challenge to its reasonable-
ness.

  VACATED and REMANDED.
