Alcantara-Rueda

concurring in part and dissenting in part.

I concur in the remainder of the disposition, but not in the conclusion that the district court properly declined to recuse himself after engaging in ex parte communications with the attorney for the government. There was, to my mind, an appearance of impropriety requiring recusal, not because of the content of the conversation between the judge and the government’s lawyer but because the judge instigated the conversation at all.

The government had agreed to a sentence of which the district judge evidently disapproved, as evidenced by his later refusal to follow the government’s recommendation against use of the aggravated assault guideline. See USSG § 2A2.2. The judge’s law clerk had called the government lawyer to ascertain which witnesses the government would have available for the sentencing hearing and what they would testify to, and obtained that information. Then the district judge got on the line to speak with the government lawyer. By doing so, without any later explanation for the necessity of doing so, the district judge engaged in behavior open to the appearance that he was attempting, through his actions if not his words,…

MEMORANDUM *

Rogelio Alcantara-Rueda appeals his sentence after a guilty plea to a charge of assaulting a federal officer. See 18 U.S.C. § 111 . We vacate the sentence and remand.

(1) Alcantara first claims that his sentence must be set aside because the district judge had an ex parte communication about the case with an Assistant United States Attorney. We do not agree. Ex parte communications between judges and attorneys are to be frowned upon to say the least. See United States v. Van Griffin, 874 F.2d 634, 637 (9th Cir.1989); United States v. Alverson, 666 F.2d 341, 348-49 (9th Cir.1982). However, the mere fact that a communication took place does not necessarily demonstrate that the judge’s impartiality might reasonably be questioned. See Willenbring v. United States, 306 F.2d 944, 946 (9th Cir.1962) (recusal not required). Cf United States v. Wolfson, 634 F.2d 1217, 1221-22 (9th Cir.1980) (communication in question did require recusal); United States v. Reese, 775 F.2d 1066, 1076-78 (9th Cir.1985) (same). In this case, while he engaged in an exceedingly poor practice, there is no indication that the judge received information that could, or did, affect the sentence. Thus,…