NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30354
Plaintiff - Appellee, D.C. No. 1:13-cr-00115-BLW
v.
AMENDED MEMORANDUM*
SAMANTHA JO TACKITT,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted December 5, 2014**
Before: HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.
Samantha Jo Tackitt appeals from the district court’s judgment and challenges
the 151-month sentence imposed following her guilty-plea conviction for
conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and
846. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
resentencing.
The government concedes that the government breached the parties’ plea
agreement by using Tackitt’s immunized admissions about her criminal conduct at
sentencing.1 The parties dispute what standard of review applies and whether
Tackitt was prejudiced by the breach. We conclude that remand is warranted even
under plain error review because there is a reasonable probability that the court’s
choice of a high-end sentence was influenced by the immunized admissions. See
United States v. Whitney, 673 F.3d 965, 972-74 (9th Cir. 2012) (finding plain error
where the government’s use of immunized admissions was an implicit argument for
a harsher sentence and, therefore, likely “influenced the court's overall view of the
appropriate sentence”). Accordingly, we vacate and remand for resentencing. See
id. at 976. We remand to a different judge as required by our circuit law “although
in doing so we intend no criticism of the district judge . . . and none should be
inferred.” Id. (internal quotations omitted).
VACATED and REMANDED for resentencing.
1
See Berger v. United States, 295 U.S. 78, 88 (1935).
2 13-30354