United States v. Francisco Flores-Jorge ( 2013 )

FILED
NOT FOR PUBLICATION OCT 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10634
Plaintiff - Appellee, D.C. No. 2:11-cr-00048-JCM
v.
MEMORANDUM *
FRANCISCO FLORES-JORGE, a.k.a.
Paco,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Francisco Flores-Jorge appeals from the district court’s judgment and
challenges the 210-month sentence imposed following his guilty-plea conviction
for conspiracy to distribute more than 50 grams of methamphetamine and four
*
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).
counts of distribution of a controlled substance, in violation of 21 U.S.C. §§ 841and 846. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand
for resentencing.
Flores-Jorge contends that the district court erred by applying a two-level
leadership enhancement under U.S.S.G. § 3B1.1(c). In light of the government’s
concession that there is insufficient evidence to support the role enhancement, we
vacate and remand for resentencing. Upon remand, the district court shall
recalculate the Guidelines range without the two-level enhancement and resentence
Flores-Jorge.
We decline to reassign this case to a different district judge on remand.
“Absent proof of personal bias on the part of the district judge, remand to a
different judge is proper only under unusual circumstances.” United States v.
Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002). We find no basis in the record to
support Flores-Jorge’s contention that Judge Mahan is biased against him, and the
circumstances do not otherwise warrant reassignment. See id.In light of our decision, we do not reach the question of whether Flores-
Jorge’s sentence is substantively reasonable.
Flores-Jorge’s motion to extend time to file his reply brief is granted. The
Clerk shall file the reply brief received on August 30, 2013.
VACATED and REMANDED for resentencing.
2 12-10634