FILED

NOT FOR PUBLICATION

JUL 10 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10369

Plaintiff-Appellee, DC No. CR 13-0010 RVM

v.

MEMORANDUM*

MACRINA ROSE BLANCO

TEDTAOTAO,

Defendant-Appellant.

Appeal from the District Court of Guam Ramona V. Manglona, District Judge, Presiding

Argued and Submitted June 14, 2018 Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

Defendant-Appellant Macrina Rose Blanco Tedtaotao (“Tedtaotao”) was

charged, together with her husband and her aunt, Bertha Moore, with conspiracy to

import methamphetamine into Guam from the Philippines. Tedtaotao pled guilty,

pursuant to a plea agreement, which provided in part that the “United States agrees

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. to recommend at sentencing that the Court impose a sentence at the low end of the

applicable guideline range.” We have jurisdiction under 28 U.S.C. § 1291 over her

appeal from the sentence. We vacate Tedtaotao’s sentence and remand for

resentencing by a different district judge.

1. The government concedes that the enhancement for obstruction of

justice under U.S.S.G. § 3C1.1 was not supported by sufficiently reliable evidence,

and that “[i]t was therefore clearly erroneous to assess the . . . enhancement.”

United States v. Pimentel-Lopez, 859 F.3d 1134, 1144 (9th Cir. 2016). We accept

the government’s concession, and so vacate Tedtaotao’s sentence on this basis.1

2. The Guidelines sentencing range was calculated at 87 to 108 months.

Tedtaotao was sentenced to a 97-month term of imprisonment. Even reviewing for

plain error, the government breached the plea agreement by recommending a

sentence of 97 months, despite a Guidelines range of 87 to 108 months. See

United States v. Waknine, 543 F.3d 546, 552 (9th Cir. 2008). In federal

sentencing, a promise to recommend a sentence “at the low end of the applicable

guideline range” is reasonably understood only as a promise to recommend a

1 Because the government has not indicated that it intends to support this enhancement with reliable evidence on remand, nor argued that it should be afforded the chance to do so, see United States v. Pridgette, 831 F.3d 1253, 1255–57 (9th Cir. 2016), we do not address the parties’ other arguments about this enhancement. 2 sentence at or very close to the low endpoint of that range, not a mere one-half

month below the midpoint of that range. The government’s mid-range

recommendation was thus a clear breach of its promise in the plea agreement,

which affected Tedtaotao’s substantial rights. See United States v. Joseph, 716

F.3d 1273, 1280 (9th Cir. 2013). The district court accepted the government’s

mid-range recommendation of 97 months; had the government kept its promise,

there is a reasonable probability that the district court would have chosen a

sentence that, while perhaps higher than Moore’s sentence of 87 months, still

would have been closer to the low end of the Guidelines range than 97 months.

See id. (“[W]hen a plain error may have led to a sentence that was one month

longer than necessary, even within the Sentencing Guidelines, that error ‘affects

substantial rights.’”) (citation omitted). The probability that this error resulted in

additional jail time, and the fact that the error is easily corrected on remand, favor

noticing it as one that seriously affects the fairness, integrity, and reputation of

judicial proceedings. See Rosales-Mireles v. United States, 2018 WL 3013806, at

*8, *10 (U.S. June 18, 2018).

Moreover, when the government evades its obligations under a plea

agreement, the integrity of our judicial system is undermined. See United States v.

Whitney, 673 F.3d 965, 974 (9th Cir. 2012). “In some cases, when the defendant

3 himself has engaged in conduct that undermined the parties’ obligations, strict

compliance is not necessary to ensure that the integrity of the judiciary is

maintained, notwithstanding the government’s breach.” Id. (citing Puckett v.

United States, 556 U.S. 129 (2009)). Unlike in Puckett, there are no

“countervailing factors” that excuse the government’s breach here. See 556 U.S. at

142–43. On the contrary, the frequency with which the government extends the

promise that it breached here is a factor that favors noticing this error, as excusing

this specific breach risks undermining the fairness and integrity of the plea

bargaining system.

Because we conclude that the government breached the plea agreement,

“we must remand this matter to a different judge, although we ‘intend no criticism

of the district judge by this action, and none should be inferred.’” Whitney, 673

F.3d at 976 (quoting United States v. Johnson, 187 F.3d 1129, 1136 n.7 (9th Cir.

1999)).

3. The district court did not abuse its discretion in determining that

Tedtaotao was an “organizer.” United States v. Gasca-Ruiz, 852 F.3d 1167, 1170,

4 1174–75 (9th Cir. 2017) (en banc); U.S.S.G. § 3B1.1, cmt. n.4.2 There is adequate

evidence that Tedtaotao exercised control over Moore or was responsible for

organizing Moore in carrying out the drug trafficking conspiracy. See United

States v. Doe, 778 F.3d 814, 823 (9th Cir. 2015) (quoting Whitney, 673 F.3d at

975). Even if Moore exercised some independence in carrying out certain tasks,

the enhancement is still supported by the record. See Doe, 778 F.3d at 825; see

also United States v. Montano, 250 F.3d 709, 715–16 (9th Cir. 2001).

Contrary to Tedtaotao’s assertion, the district court did not focus only on

whether Tedtaotao exercised control over the drug proceeds; instead, it emphasized

that Tedtaotao received a larger share of these proceeds. See U.S.S.G. § 3B1.1,

cmt. n.4. Even if Tedtaotao’s husband also played a leadership role, the district

court’s decision to apply the organizer enhancement was not an abuse of

discretion, as there can be more than one leader or organizer. See id. In any event,

the district court distinguished between Tedtaotao’s and her husband’s roles.

While the district court may have mistakenly believed that only Tedtaotao carried

2 We address this issue because it is likely to arise again on remand. However, because we are remanding to a different district judge, we decline to reach Tedtaotao’s other arguments that the original judge failed to comprehend her authority to grant a downward variance under 18 U.S.C. § 3553(a) based on Tedtaotao’s family circumstances, improperly penalized Tedtaotao for her religious beliefs, or failed to explain the chosen sentence. Tedtaotao is, of course, free to make these arguments to the district court at resentencing, if appropriate. 5 money to the Philippines, there is still sufficient evidence to support the

enhancement. See Whitney, 673 F.3d at 976.

4. Because we vacate Tedtaotao’s sentence based on an erroneous

offense level enhancement and breach of the plea agreement, we do not reach

whether the sentence as a whole is substantively reasonable. See United States v.

Gardenhire, 784 F.3d 1277, 1284 n.4 (9th Cir. 2015). This includes any alleged

error in failing to grant a downward variance or a downward departure. See United

States v. Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir. 2011).

VACATED and REMANDED for resentencing, with instructions to

reassign to a different district judge.

6