                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              OCT 06 2015
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 11-16438

              Plaintiff - Appellee,                D.C. Nos.    2:10-cv-02934-EJG
                                                                2:05-cr-00306-EJG
  v.                                               Eastern District of California,
                                                   Sacramento
SUNDEEP DHARNI,

              Defendant - Appellant.               ORDER


Before: WALLACE, FISHER, and BERZON, Circuit Judges.

       (1) The Joint Motion to Dismiss and Remand to District Court and Joint

Status Report are construed as a joint motion for summary reversal of the district

court’s denial of relief under 28 U.S.C. § 2255.

       (2) The joint motion for summary reversal, so construed, is granted in the

interests of justice. See Baca v. Adams, 777 F.3d 1034 (9th Cir. 2015). The

district court shall enter judgment vacating Dharni’s convictions. 28 U.S.C.

§ 2255. We express no view as to the alleged constitutional infirmity of Dharni’s

conviction. Cf. United States v. Hock, 172 F.3d 676, 680-81 (9th Cir. 1999)

(holding that the district court properly construed the parties’ stipulation that the
defendant’s conviction was defective as a § 2255 motion and properly granted the

motion).

      (3) This matter is remanded for further proceedings consistent with this

disposition. If the parties reach a new plea agreement under Fed. R. Crim. P.

11(c)(1)(C), the district court should either accept the parties’ new plea agreement

and sentence Dharni in accordance therewith or reject that plea agreement and

proceed accordingly.

      SO ORDERED. THE MANDATE SHALL ISSUE FORTHWITH.
                                                                             FILED
USA v DHARNI 11-16438
                                                                             OCT 06 2015
WALLACE, J., dissenting                                                   MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I dissent from this Order for the same reasons I dissented from the majority’s

order requiring to the parties to show cause. As I explained there, we should now

reinstate our prior opinion, United States v. Dharni, 738 F.3d 1186, reh’g granted

and opinion vacated, 757 F.3d 1002 (9th Cir. 2014), because Dharni has stipulated

that he cannot establish that the facts assumed in our original opinion were wrong.

That stipulation forecloses him from carrying his burden of establishing a Sixth

Amendment violation. Because he has failed to carry his burden, the district court

did not err in denying his 28 U.S.C. § 2255 motion.

      I disagree with the majority that we have power to reconstrue the parties’

filings as a joint motion for summary reversal. While the majority believes that the

“interests of justice” support doing so, that belief cannot overcome the fact that the

parties never actually filed any such motion. Moreover, the government has

expressly disclaimed any confession of error. Accordingly, I see no basis for

ordering the district court to vacate Dharni’s convictions. I respectfully dissent.
