USA V. GRADY MYERS, No. 16-50080 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 23 2017 MOLLY C. DWYER, CLERK UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 16-50080 U.S. COURT OF APPEALS D.C. No. 2:14-cr-00338-SJO-62 v. GRADY MYERS, AKA Too Tall, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding Argued and Submitted August 10, 2017 Pasadena, California Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges. To the extent a plea agreement is capable of more than one interpretation, we “constru[e] any ambiguities in the defendant’s favor.” United States v. Heredia, 768 F.3d 1220, 1230 (9th Cir. 2014). Accordingly, the government breached paragraph 30 of the plea agreement because it argued for the higher drug quantity, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. at several points, thereby encouraging the court to impose a higher sentence. In light of this breach, “we must remand this matter to a different judge, although in doing so we ‘intend no criticism of the district judge by this action, and none should be inferred.’” United States v. Whitney, 673 F.3d 965, 976 (9th Cir. 2012) (quoting United States v. Johnson, 187 F.3d 1129, 1136 n.7 (9th Cir. 1999)). A minimal or minor participant adjustment under § 3B1.2 is available if the defendant was substantially less culpable than his co-participants. United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). The district court failed to compare Myers’s conduct to that of his co-conspirators. That was error and, on remand, the district court shall reconsider Myers’s eligibility for a mitigating role reduction. We vacate Myers’s sentence and remand for re-sentencing before a different district court judge. VACATED and REMANDED. 2

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