                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                          JAN 7 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No.   17-10480

                 Plaintiff-Appellee,              D.C. No.
                                                  3:14-cr-00044-LRH-WGC-1
 v.

DEVON KAUWE,                                      MEMORANDUM*

                 Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                     Argued and Submitted December 17, 2018
                             San Francisco, California

Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.

      Appellant Devon Kauwe appeals the 130-month sentence imposed following

his guilty plea to conspiracy to possess with intent to distribute and to distribute at

least 50 grams of actual methamphetamine. We have jurisdiction under 28 U.S.C.

§ 1291. Because the government breached the plea agreement and the district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
court erroneously calculated Kauwe’s base level offense, we vacate the sentence

and remand for resentencing.

      “[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, . . . such promise must be fulfilled.” United States v. Camper, 66

F.3d 229, 232 (9th Cir. 1995) (alteration in original) (quoting Santobello v. New

York, 404 U.S. 257, 262 (1971)). Specifically, “when the government obligates

itself to make a recommendation at the low end of the guidelines range, it may not

introduce 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)

(internal quotation marks omitted). Because Kauwe failed to timely object to the

government’s sentencing memorandum, we review his breach of plea agreement

claim for plain error. Id. at 970.

      Before sentencing, Kauwe filed exhibits consisting of family photos and

letters. The government, however, submitted a sentencing memorandum that

largely repeated unfavorable facts already known to the court. Critically, it failed

to recommend a sentence at the low end of the Sentencing Guidelines range, as

required by the plea agreement, arguing that a “sentence within the applicable

Sentencing Guidelines range” was not greater than necessary. ER 73–74. The

government’s failure to recommend the low end of the range, coupled with exhibits

and statements calling attention to the ugliest aspects of Kauwe’s behavior, likely


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served to influence the court to impose a harsher sentence and denied Kauwe the

united front for which he bargained. Moreover, because Kauwe did not request a

sentence below the range until the sentencing hearing, the memorandum cannot be

characterized as a “fair response” to Kauwe’s request for a downward departure.

See United States v. Moschella, 727 F.3d 888, 892 (9th Cir. 2013) (finding the

government’s sentencing arguments a “fair response” to defendant’s request for a

downward variance). Accordingly, we conclude that there was a clear breach of

the plea agreement.

         The breach of the plea agreement releases Kauwe from its appellate waiver,

and we may, therefore, consider Kauwe’s procedural challenges. See United

States v. Gonzalez, 16 F.3d 985, 990 (9th Cir. 1993). We address only Kauwe’s

challenge to his base offense level calculation as his other arguments are without

merit.

         The court erroneously applied a base level offense of 38, applicable to actual

methamphetamine quantities of 4.5 kilograms or more, rather than a base level

offense of 36, applicable to quantities of at least 1.5 kilograms but less than 4.5

kilograms. See U.S.S.G. § 2D1.1(c). The court incorrectly concluded that

Kauwe’s awareness of the entire amount involved in the drug conspiracy and his

close relationship with another co-conspirator were sufficient to make him

accountable for the entire conspiracy. Rather, under U.S.S.G. § 1B1.3(a)(1)(B),


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the relevant conduct in a conspiracy consists of all reasonably foreseeable acts and

omissions of others in furtherance of a “jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1)(B). The “scope of the ‘jointly undertaken criminal

activity’ is not necessarily the same as the scope of the entire conspiracy” and

“[a]cts of others that were not within the scope of the defendant’s agreement, even

if those acts were known or reasonably foreseeable to the defendant, are not

relevant conduct.” U.S.S.G. § 1B1.3, comment. (n.3(B)). Hence, “[e]ach

conspirator is responsible only for the activities that fell within the scope of his

particular agreement with the conspirators, and reasonably foreseeable behavior in

furtherance of that particular agreement.” United States v. Riley, 335 F.3d 919,

928 (9th Cir. 2003). Here, the district court did not find a “particular agreement”

between Kauwe and the other co-conspirators as to the distribution of the entire

seventeen pounds of actual methamphetamine involved in the conspiracy. The

distribution of the additional ten-pound quantity, although known to Kauwe, was

not shown to be within the scope of his jointly undertaken criminal activity. Thus,

Kauwe’s relevant conduct for purposes of the base level offense calculation was

limited to the distribution of the seven pounds, or 3.18 kilograms, of actual

methamphetamine he agreed to distribute, not the entire quantity involved in the

conspiracy.

      Where a government breaches its plea agreement, the “usual remedy is a


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remand for resentencing . . . at which time the government should fulfill its

obligation under the plea agreement.” Camper, 66 F.3d at 232 (quoting United

States v. Fisch, 863 F.2d 690, 690–91 (9th Cir. 1988)). Because of the breach, our

own precedent dictates that any further proceedings occur before a different judge

to “eliminate [the] impact of the government’s . . . breach.” United States v.

Alcala-Sanchez, 666 F.3d 571, 577 (9th Cir. 2012) (citing Santobello, 404 U.S. at

263); United States v. Heredia, 768 F.3d 1220, 1236 (9th Cir. 2014) (“Once the

district judge has seen or heard the offending words that denied the defendant the

benefit of his bargain, any further proceedings before him would necessarily be

tainted by the government’s breach.”); United States v. Johnson, 187 F.3d 1129,

1136 n.7 (9th Cir. 1999) (“We remand to a different judge for re-sentencing

because the case law requires us to do so. We intend no criticism of the district

judge by this action, and none should be inferred.”).

      Kauwe’s sentence is VACATED and the case REMANDED for

resentencing before a different judge.




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