UNITED STATES of America, Plaintiff-Appellant, v. Jose Luis VALENCIA-MENDOZA, Defendant-Appellee, 517 F. App'x 590

MEMORANDUM 1. The district judge erred by placing the burden of proof on the government to show that Valencia-Mendoza was ineligible for safety-valve relief. See United States v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th Cir.2007); see also 18 U.S.C. §§ 3558(f)(2), (5). Consequently, his finding that Valencia-Mendoza was safety-valve eligible was clearly erroneous. See Mejia-Pimental, 477 F.3d at 1103. 2. This case is ordered assigned to a new district judge on remand in light of the “unusual circumstances.” United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979) (internal quotation marks omitted).

The district judge stated on the record that his “sentencing justice [was] deeply offended” by the sentencing disparity that would arise from imposition of the mandatory minimum and further indicated his desire not to be tasked with resentenc-ing on remand.

These statements suggest that (1) the district judge would “have substantial difficulty in putting out of his ... mind previously-expressed views” regarding Valencia-Mendoza’s sentence; (2) “reassignment is advisable to preserve the appearance of justice”; and (3) “preserving the appearance of fairness” outweighs the minimal duplication of effort that will be necessary for a new judge to resentence Valencia-Mendoza. Id. REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.