NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. RAFAEL MARTINEZ

- LOPEZ,

Defendant

- Appellant. No. 20

- 50020
D.C. No. 3:19

- cr - 02802

- LAB

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding Argued and Submitted January 12, 2021 Pasadena, California Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges. Defendant Rafael Martinez

- Lopez appeals the district court’s judgment sentencing him to twenty

- four months’ imprisonment. We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand to a new jud ge for resentencing

. Martinez

- Lopez pleaded guilty to illegal reentry under 8 U.S.C. § 1326. In the plea agreement, the government promised to recommend “the low end of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

FEB 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

advisory guideline range as calculated by the Government

. ” T he government initially calculated the advisory guideline range to be eighteen to twenty

- four months, based in part on the government’s belief that the total sentence Martinez

Lopez received for a 2010 DUI conviction , including the sentence imposed when his probation was revoked, exceed ed thirteen months, which would have increased both the offense level points and the criminal history point s for that conviction under United States Sentencing Guidelines (U. S.S.G.) § § 2L1.2(b)(2)(C) , 4A1.1(a)

. 1 Martinez

- Lopez objected , claiming that under our decision in United
States v. Gomez

- Leon , 545 F.3d 777 (9th Cir. 2008) , his sentence, for guideline calculation purposes, was necessarily no more than 365 days. T he government then
agre ed with defendant and amended its calculation to reflect an advisory guideline range of eight to fourteen months , specifically citing Gomez

- Leon

. The government filed its amended sentencing summary chart the weekend before a Monday sentencing hearing

. G oing into sentencing, then, the “low end of the advisory guideline range as calculated by the Government ” was eight months.

1 If the sentence were to exceed thirteen months, the conviction would be assigned six offense level points and three criminal history points, as opposed to four offense level points and two criminal history points for a sentence less than thirteen months. U.S.S.G. §§ 2L1.2(b)(2), 4A1.1. Here that made a substantial differenc e in the advisory guideline range by both increasing the offense level and placing Martinez

Lopez in criminal history category IV rather than III.3

The sentencing AUSA was new to the case , did not know that the government had amended its recommendation , and mistakenly reviewed the government’s original calculation

. T he AUSA thus recommended an eighteen

- month sentence several times during the sentencing hearing, though he eventually change d his recommendation to reflect the government’s amended calculation

. Still, t he district
court decided that Gomez

- Leon did not apply and that the defendant’s total sentence for the 2010 DUI conviction exceed ed thirteen months for guideline purposes. And although the district court claimed to “calculate the guidelines both ways , ” based on both the defense attorney’s proposed guideline range (based on Gomez

- Leon ) and the higher range , it applied a downward variance based on mitigating factors only to the higher range . Ultimately, the district court sentenced Martinez

- Lopez to twenty

four months. 2
Martinez

- Lopez contends both that the government breached the plea agreement and that the district court erred in assigning six offense level points and three c riminal history points to his 2010 DUI conviction. We review both claims de

novo. See United States v. Alvarez , 835 F.3d 1180, 1187 (9th Cir. 2016); United
States v. Gasca

- Ruiz , 852 F.3d 1167, 1170

– 71 (9th Cir. 2017) (en banc).

2 The judge declined to apply the “fast track” four

- level decrease recommended by the government per a separa te term of the plea agreement, making the possible sentencing ranges either eighteen to twenty

- four months or thirty to thirty

- seven months. Martinez

- Lopez does not claim that the court abused its discretion in declin ing to apply th is fast

- track departure

.4

We first conclude that the government breached the plea agreement

. The government is correct that it “ was free . . . to amend its sentencing recommendation at the sentencing hearing,” given the absence of any calculation expressly agreed upon in the plea agreement. But t he govern ment concedes that its attorney initially recommended eighteen months at the sentencing hearing not because the government had recalculated the proper sentencing range, but rather “[d]ue to a miscommunication.” “The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know w hat the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” Santobello v. New York , 404 U.S. 257, 262 (1971)

. Nor does the fact that the government eventually got the sentencing recommendation right mean there was not a breach

. A n initial erroneous recommendation might no t constitute a breach if it was a “mere slip of the tongue or typographical error.” United States v. Alcala

- Sanchez , 66 6 F.3d 571, 57 6 (9th Cir. 2012) . B ut that was not the case here. Furthermore, “ [t] hat the government changed its recommendation before the district court sentenced [Martinez

- Lopez] does not change [this] conclusion. . . . [T]he argued impact on the sente ncing judge, when there is a breach of a plea agreement by making an erroneous sentencing recommendation and subsequent correction, is irrelevant.” Id. at 577. We thus remand for resentencing before a different judge , “in no sense to question the5

fairnes s of the sentencing judge,” but “because the case law requires us to do so ” when a prosecutor breaches a plea agreement. United States v. Mondragon , 228 F.3d 978, 981 (9th Cir. 2000) ( citations omitted ). “We intend no criticism of the district judge by this action, and none should be inferred. ” Id. (citation omitted).
We further conclude that on remand , the sentencing judge should not treat Martinez

- Lopez’s 2010 DUI conviction as a sentence exceeding thirteen months. In general, California does not all ow a defendant to be sentenced to more than 365 days in county jail for a single offense

. Cal. Penal Code § 19.2 . California courts make an exception, however, where the defendant knowingly and intelligently waives the
365

- day cap in order to remain in o r return to county jail rather than going to prison (a “ Johnson waiver ” )

. People v. Johnson , 147 Cal. Rptr. 55, 58 (Ct. App. 1978)

. Gomez

- Leon held that in the absence of any evidence of a Johnson waiver, a federal sentencing court cannot conclude that a sentence issued by a California court exceeded thirteen months where the defendant was sentenced to jail rather than prison in circumstances like those in this case

. 545 F.3d at 785

. Here , the sentences imposed for Martinez

- Lopez’s 2010 D UI conviction and the subsequent revocation of his probation for that conviction exceed thirteen months of jail time , 3 but there is

3 Martinez

- Lopez was originally sentenced to a 365

- day jail term, and he was sentenced to an additional sixty days when his probation was revoked

.6

no evidence of a Johnson waiver. Therefore, the sentencing judge must treat these combined sentence s as a sentence less than thirteen months. We are aware that this outcome diverges from the usual approach of the Sentencing Guidelines , which expressly include s revocations of probation as part of

a “prior sentence,” and which determine s the length of a prior sentence “ based on the sentence pronounced, not the length of time actually served.” U.S.S.G. §§ 2L1.2
cmt. n.2 , 4A1.2 cmt. n.2; see also id. § 4A1.2(k)(1) (“In the case of a prior revocation of probation . . . add the original term of imprisonment to any term of i mprisonment imposed upon revocation.”). It also is difficult to reconcile with the purpose of the Guidelines , namely, to “provide certainty and fairness in meeting the purposes of sentencin g, avoiding unwarranted sentencing disparities among defendants with similar records.” United States v. M artinez , 905 F.2d 251, 253 (9th Cir. 1990 ) (citation omitted). It also appears to contradict our prior holding in United States v. Mendoza

- Morales , 347 F.3d 772 ( 9th Cir. 2003) , that “state judicial characterizations of the purpose or nature of a sentence are irrelevant ” for federal sentencing purposes

. Id. at 774

. Finally, it is in tension with our subsequent holding
in United States v. Buzo

- Zepeda , 609 F.3d 1024 (9th Cir. 2010), that “a ‘ Johnson waiver’ in California state court has no effect on the determination of whether a defendant qualifies for a point increase under” the S entencing Guidelines. Id. at 1025.7

Nevertheless, today we are constrained by our decision in Gomez

- Leon , which is reconci lable with Buzo

- Zepeda 4 only by the narrow distinction that there was evidence of a Johnson waiver in the latter but not the former. Compare Gomez

Leon , 545 F.3d at 785 , with Buzo

- Zepeda , 609 F.3d at 1025

. As there is no evidence of a Johnson waiver in this case , the sentencing court on remand must paradoxically treat Martinez

- Lopez’s 2010 DUI conviction and subsequent probation revocation as a sentence less than thirteen months , when he was in fact sentenced to 425 days, or fourteen months

. VACATED AND REMANDED.

4 Buzo

- Zepeda never discussed Gomez

- Leon

.