                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           MAY 09 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        Nos. 15-50073, 15-50104

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00270-LAB-1

 v.                                              MEMORANDUM*

JUAN CARLOS SANCHEZ CARRILLO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted April 6, 2016
                              Pasadena, California

Before: FERNANDEZ and BEA, Circuit Judges and GONZALEZ ROGERS,**

District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable Yvonne Gonzalez Rogers, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
      Juan Carlos Sanchez-Carrillo challenges the conduct of the district court in

proceedings on his motion to correct his sentence under Rule 351 after the re-

imposition of a 70-month sentence for importation of methamphetamine2 following

remand from a successful appeal.3 Sanchez-Carrillo asserts that the district court

acted improperly when it did not fairly resentence him and, instead, acted to defend

its reimposition of the 70-month sentence on remand from this Court’s vacatur of

the same.4 We agree, vacate, and remand to a different judge for resentencing.

      Canon 2A of the Code of Conduct for United States Judges generally directs

judges to “act at all times in a manner that promotes public confidence in the

integrity and impartiality of the judiciary.” Canon 3A(4) explicitly instructs that

judges “should not initiate, permit, or consider ex parte communications” in an

ongoing proceeding. Code Jud. Conduct, Canons 2A, 3A(4) (2009). Although not

binding upon us, a California rule is stated more precisely and is particularly


      1
            See Fed. R. Crim. P. 35(a) (“Within 14 days after sentencing, the court
may correct a sentence that resulted from arithmetical, technical, or other clear
error.”).
      2
             21 U.S.C. §§ 952 and 960.
      3
            United States v. Sanchez-Carrillo, Case No. 13-50310 (9th Cir. Dec.
12, 2014) (unpublished).
      4
             Sanchez-Carrillo labels his claim as one based on judicial
vindictiveness, but we see it as a claim that judicial actions undermined the
appearance of justice.

                                          2
instructive here: “a judge shall not independently investigate facts in a proceeding”

nor shall a judge “initiate, permit, or consider ex parte communications, that is, any

communications to or from the judge outside the presence of the parties concerning

a pending or impending proceeding.” California Code of Judicial Ethics, Canon

3.B.7 (2015).

      The record shows that in this case the district court intended to impose a 70-

month sentence on the defendant regardless of this Court’s mandate when the

district court emphasized at the close of the hearing on the Rule 35 motion: “I say

it one last time: Even if I embraced your suggestion and used the old Guidelines, I

would come to the same result. . . . [T]he best that this fellow could do with me on

these facts is a 70-month sentence, which is what I imposed the first time and

reimposed the second time. . . .” Thus, this Court evaluates the ruling on the Rule

35 motion against this backdrop.

      During the resentencing, the district court acknowledged that it was aware

that the standard for a presumption of “vindictiveness” could be satisfied if a

sentence higher than the last was imposed. It further advised that it “would still,

after hearing everything, impose a 70-month sentence in this case” regardless of

the mandate of this Court. The district court used an additional report, the DEA-7

lab report, which changed the base offense level under the Sentencing Guidelines

                                          3
and increased the defendant’s exposure. The district court obtained this DEA-7 lab

report ex parte from the government, never explaining why such communication

should not have simultaneously included the defense, given the court’s intention to

consider the contents thereof in its sentencing decision. Based thereon, and

consistent with its declaration, the district court imposed a sentence of 70 months.

      When Sanchez-Carrillo moved to correct the sentence under Rule 35, the

district court undermined the appearance of its neutrality and obtained additional

evidence to bolster and defend the resentencing. First, and unbeknownst to the

parties, the district court made ex parte contact with the government’s expert

witness to discuss the DEA-7 lab report. At the hearing on Sanchez-Carrillo’s

Rule 35 motion, the district court then suggested calling the expert as a witness by

telephone. Defense counsel objected but the district court nonetheless called the

expert and she was sworn telephonically. Next, the district court itself conducted

the direct examination of the expert witness. The government did not ask a single

question. Moreover, the district court never disclosed that it had already contacted

the expert witness ex parte. This improper ex parte contact was only revealed

through defense counsel’s cross-examination.

      The core of the judicial function is fairness and the lack of even an

appearance of impropriety. Such repeated instances of judicial impropriety cannot

                                          4
be countenanced if these judicial tenets are to have meaning. Here, the district

court’s post-sentencing conduct casts doubt on the fairness of the resentencing and

certainly of the Rule 35 proceedings. Accordingly, remand is appropriate. United

States v. Alverson, 666 F.2d 341, 348-50 (9th Cir. 1982) (district court’s ex parte

communication with case agent prior to sentencing improper and required

resentencing).

      Sanchez-Carrillo also asserts that remand to a different judge is necessary

under the circumstances. We agree. The district court has expressed its

unwillingness to impose anything other than a 70-month sentence. “Taking the

[district] court at its word,” we remand to a different judge. United States v.

Gardenhire, 784 F.3d 1277, 1284 (9th Cir. 2015); see Alversen, 666 F.2d at 349-

50; United States v. Wolfson, 634 F.2d 1217, 1222 (9th Cir. 1980).

      In light of this disposition, we decline to reach Sanchez-Carrillo’s other

claim of sentencing error.

      VACATED and REMANDED for resentencing.




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