
    UNITED STATES of America, Plaintiff—Appellee, v. Alexander McALLISTER, Defendant—Appellant.
    No. 01-50300.
    D.C. No. CR-99-02071-IE G.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Jan. 16, 2003.
    Decided March 20, 2003.
    Before HALL, KOZINSKI and RAWLINSON, Circuit Judges.
   MEMORANDUM

Because the government did not enter any actual evidence (only unsubstantiated allegations), the district court had no basis to conclude, as a factual matter, that defendant breached the plea agreement. The government was thus obligated to honor its side of the bargain. Because the court below heard evidence the government should not have presented, we vacate defendant’s sentence and remand for re-sentencing before another district judge. See United States v. Mondragon, 228 F.3d 978, 981 (9th Cir.2000) (“[T]his is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor .... ” (internal quotation marks omitted)). At resentencing, the government shall perform its obligations under the plea agreement.

VACATED and REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     