United States of America v. LORENZO ESPINOZA, AKA Seal A

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO ESPINOZA, AKA Seal A,
Defendant - Appellant.
No. 13-50443
D.C. No. 2:04-cr-00263-SVW-1
Central District of California,
Los Angeles
ORDER
Before: PREGERSON and CALLAHAN, Circuit Judges and BASTIAN,* District
Judge.
Judge Pregerson and Judge Bastian have voted to grant the petition for panel
rehearing. Judge Callahan has voted to deny the petition for panel rehearing. The
petition for panel rehearing is GRANTED.
Reassignment is necessary to preserve the appearance of justice. We instruct
the Clerk of Court for the Central District of California to reassign this case to a
different district court judge upon remand.
FILED
MAY 31 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.

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United States v. Espinoza, No. 13-50443
CALLAHAN, Circuit Judge, dissenting:
I dissent from the grant of the petition for rehearing. Here, the district
court’s error was only failing to give the parties notice that it would consider
confidential Presentence Investigative Reports of other defendants. Accordingly,
there is no need to depart from our general rule that resentencing is to be done by
the original sentencing judge. United States v. Acosta-Chavez, 727 F.3d 903, 910
(9th Cir. 2013). Because there is no need for the district judge to put the reports
out of his mind, reassignment is not necessary to preserve the appearance of
justice. See United States v. Mikaelian, 168 F.3d 380, 387–88 (9th Cir. 1999).
The reassignment is an unnecessary and undeserved slap at the district judge as
well as a “waste and duplication out of proportion to any gain in preserving the
appearance of fairness.” Id.
FILED
MAY 31 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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