United States of America v. Samantha Jo Tackitt

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMANTHA JO TACKITT,
Defendant - Appellant.
No. 13-30354
D.C. No. 1:13-cr-00115-BLW
MEMORANDUM*
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).
FILED
DEC 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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resentencing.
The government concedes that Assistant United States Attorney Christian
Nafzger 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).

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