Menyweather

MEMORANDUM ***

Defendant Dorothy Menyweather pleaded guilty to mail fraud. An earlier appeal by the government resulted in a reversal and remand for resentencing. United States v. Menyweather, 36 Fed.Appx. 262 , 2002 WL 1001142 (9th Cir.2002). The government now appeals from the judgment entered upon resentencing. We again reverse and remand for resentencing.

1. The district court relied on a ground as to which the government did not *875 have notice. Following our previous remand, the district court held a short sentencing proceeding. Defense counsel argued for the same sentence, giving among several reasons that Defendant “has complied with everything for the past year.” In its written Conclusions of Law, the district court handwrote the following emphasized phrase at the end of the document: “Based upon the foregoing on July 22, 2002, this Court departs downward 8 levels, resulting in a guideline range of 0-6 months, and imposed the sentence stated on the record at that time. Included herein is also a consideration of post-conviction rehabilitation.” (Emphasis added.)

Assuming, without deciding, that “post-conviction rehabilitation” is a permissible factor, but see U.S.S.G.…