FILED
NOT FOR PUBLICATION APR 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30088
Plaintiff - Appellee, D.C. No. 1:13-cr-00028-EJL
v.
MEMORANDUM*
CLARENCE EDWARD LANCASTER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Clarence Edward Lancaster appeals from the district court’s judgment and
challenges the 63-month sentence imposed following his guilty-plea conviction for
bank larceny, in violation of 18 U.S.C. § 2113(b). We have jurisdiction under 28
U.S.C. § 1291, and we vacate and remand for resentencing.
*
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).
Lancaster contends that the government implicitly breached the parties’ plea
agreement by commenting on the seriousness of his criminal history and other
information that was contained in the presentence report. We review this claim de
novo. See United States v. Heredia, 768 F.3d 1220, 1230 (9th Cir. 2014). We
agree that the government’s extended references at the sentencing hearing to
aggravating factors related to Lancaster’s offense and criminal history breached the
plea agreement. See id. at 1231 (“An implicit breach of the plea agreement occurs
if . . . the government agrees to recommend a sentence at the low end of the
applicable Guidelines range, but then makes inflammatory comments about the
defendant’s past offenses that do not ‘provide the district judge with any new
information or correct factual inaccuracies.’” (quoting United States v. Whitney,
673 F.3d 965, 971 (9th Cir. 2012)). Accordingly, we vacate and remand for
resentencing. See Whitney, 673 F.3d 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.
2 14-30088