05-4285-cr United States v. Day

1 2 UNITED STATES COURT OF APPEALS 3 4 FOR THE SECOND CIRCUIT 5 6 August Term, 2007 7 8 9 (Argued: December 11, 2007 Decided: January 15,2008) 10 11 Docket Nos. 05-4285-cr(L) ; 06-5737-cr(CON); 06-5820-cr(CON) 12 13 - - - - - - - - - - - - - - - - - - - -X 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 -v.- 19 20 CHRISTOPHER D EMOTT, also known as JOHN MORRIS, also known as 21 RICHARD O’BRIAN, also known as CHRISTOPHER MORRIS, also 22 known as WARDEN JOHN DOE, 23 24 Defendants, 25 26 CHRISTOPHER CAMPBELL DAY, also known as KIP, 27 28 Defendant-Appellant. 29 - - - - - - - - - - - - - - - - - - - -X 30 31 Before: JACOBS, Chief Judge, POOLER and SACK, 32 Circuit Judges. 33 34 35 Appeal from a memorandum and order of the United States

36 District Court for the Eastern District of New York (Platt,

37 J.) resentencing defendant principally to 180 months’

38 imprisonment, following his guilty plea to conspiring to

39 distribute and possess with intent to distribute over one 1 thousand kilograms of marijuana. By resentencing defendant

2 without providing notice to defendant or his counsel, the

3 court violated defendant’s right to be present at

4 resentencing and his right to notice that the court intended

5 to impose an adverse non-Guidelines sentence. In addition,

6 there was no compliance with

(c), which

7 requires a sentencing judge to state “in open court” the

8 reasons for imposing a particular sentence. We must

9 therefore vacate the sentence and remand the case for

10 resentencing. Reassignment is appropriate in these

11 circumstances because the district judge may reasonably be

12 expected to have substantial difficulty ignoring his

13 previous views during a third sentencing proceeding.

14 Moreover, resentencing without eliciting the views of the

15 defendant or the prosecutor bespeaks a lack of receptivity

16 to their views and arguments. The sentence is VACATED and

17 the case REMANDED for resentencing with instructions to

18 reassign the case. 19 20 21 NORMAN TRABULUS, New York, NY, 22 for Defendant-Appellant. 23 24 BURTON T. RYAN, Assistant United 25 States Attorney (Peter A. 26 Norling, of counsel; Roslynn B. 27 Mauskopf, United States

2 1 Attorney, Eastern District of 2 New York, on the brief), United 3 States Attorney’s Office for the 4 Eastern District of New York, 5 New York, NY, for Appellee. 6 7 PER CURIAM: 8 9 Christopher Campbell Day pled guilty to conspiring to

10 distribute and possess with intent to distribute over one

11 thousand kilograms of marijuana . He appeals from a

12 memorandum and order of the United States District Court for

13 the Eastern District of New York (Platt, J.) resentencing

14 him, after a remand, to the same term of 180 months’

15 imprisonment. By resentencing Day without providing notice

16 to Day or his counsel, the district judge violated Day’s

17 right to be present at resentencing and his right to notice

18 that the court intended to impose an adverse non-Guidelines

19 sentence. In addition, by providing only a written

20 sentencing explanation in the form of a memorandum and

21 order, the district judge neglected

(c),

22 which requires a sentencing judge to state “in open court”

23 the reasons for imposing a particular sentence.

24 Consequently, we vacate the sentence and remand the case for

25 resentencing by a different judge. Reassignment is

26 appropriate because the district judge may reasonably be

3 1 expected to have substantial difficulty ignoring his

2 previous views during a third sentencing proceeding.

3 Moreover, resentencing without eliciting the views of the

4 defendant or the prosecutor bespeaks a lack of receptivity

5 to their views and arguments.

6

7 BACKGROUND

8 Day pled guilty to one count of conspiracy to

9 distribute and possess with intent to distribute more than

10 one thousand kilograms of marijuana in violation of 21

and 841(b)(1)(A) and one count of conspiracy

12 to distribute and possess with intent to distribute more

13 than 100 kilograms of marijuana in violation of

846 and 841(b)(1)(B). The district court initially

15 sentenced Day to 180 months’ imprisonment, the combined

16 total of the statutory minimum sentence for each count. We

17 vacated and remanded for resentencing because the district

18 court erroneously believed that the two minimum sentences

19 must run consecutively, and because we were unable to

20 discern from the record whether the court would have imposed

21 the same sentence had it not misapprehended the law. See

22 United States v. Day, 201 F. App’x. 27 (2d Cir. 2006). On

4 1 November 28, 2006, without notice to Day or the presence of

2 Day or his counsel, the district court filed a memorandum

3 and order resentencing Day to 180 months’ imprisonment.

4

5 DISCUSSION

6 I

7 The parties agree that the judgment should be vacated

8 and the case remanded for resentencing because the district

9 court violated Day’s right to be present at resentencing,

10 his right to counsel at resentencing, and his right to

11 notice that the court intended to impose an adverse non-

12 Guidelines sentence. They also agree that the district

13 court failed to comply with

(c), which

14 requires a sentencing judge to state “in open court” the

15 reasons for imposing a particular sentence.

16 The parties are correct. “[A] defendant has a

17 constitutional right to be present [during resentencing],

18 because technically a new sentence is being imposed in place

19 of the vacated sentence.” United States v. Arrous,

(2d Cir. 2003) (citation omitted). The denial of

21 this right is subject to harmless error review, id. at 361,

22 but such error is harmless only where it is “unimportant and

5 1 insignificant” in the context of the case, such as where the

2 new sentence is “less onerous than the original sentence” or

3 where “defendant’s presence would not have affected the

4 outcome.” Id. Since a new sentence was imposed out of the

5 presence of the defendant, his lawyer, and the prosecutor,

6 we cannot confidently decide that there has been no harm.

7 Under Fed. R. Crim. P. 32(i)(1)(C), “a district court

8 [must] provide a defendant with notice of its intent to

9 impose an adverse non-Guidelines sentence and an opportunity

10 to challenge the grounds for such a sentence”; failure to

11 provide such notice amounts to plain error. United States

12 v. Gilmore,

(2d Cir. 2006) (per curiam)

13 (citing United States v. Anati,

(2d Cir.

14 2006)). The district court therefore committed plain error

15 by failing to inform Day of its intent to impose an adverse

16 non-Guidelines sentence.

17 Finally, the district court’s written sentencing

18 explanation does not satisfy

(c), which

19 requires a sentencing judge to state the reasons for

20 imposing a particular sentence “in open court.” See United

21 States v. Lewis,

(2d Cir. 2005)

22 (treating § 3553(c) errors as plain errors). We therefore

6 1 vacate the sentence and remand for resentencing.

2

3 II

4 Day asserts that the district court erred in its

5 Guidelines calculation and improperly withheld “safety

6 valve” relief. The government has agreed to allow Day to

7 make an additional safety valve proffer prior to a second

8 resentencing. The district court, which will hear new

9 evidence on this issue, should have the opportunity to

10 consider these issues in the first instance on remand. In

11 so doing, the court will bear in mind that the fifth

12 requirement for safety valve relief--“the defendant has

13 truthfully provided to the Government all information and

14 evidence . . . concerning the offense . . .,”

3553(f)(5)--requires that the sentencing judge “mak[e] a

16 factual finding as to whether the defendant has made a

17 complete and truthful proffer . . .,” United States v.

18 Jeffers,

, 100 (2d Cir. 2003), and not rely

19 entirely on the withdrawal of the government’s § 5K1.1

20 letter.

21

22 III

7 1 Day argues that the case should be reassigned on remand

2 to a different sentencing judge because Judge Platt firmly

3 believes that a sentence of 180 months’ imprisonment is

4 appropriate in this case. The government argues that there

5 is no evidence that Judge Platt is personally biased against

6 Day and that the memorandum and order set forth a reasonable

7 basis for the sentence.

8 Three considerations listed in United States v. Robin,

9

(2d Cir. 1977) (per curiam), are useful in

10 deciding whether to reassign a case on remand: “(1) whether

11 the original judge would reasonably be expected upon remand

12 to have substantial difficulty in putting out of his or her

13 mind previously-expressed views or findings determined to be

14 erroneous[,] . . . (2) whether reassignment is advisable to

15 preserve the appearance of justice, and (3) whether

16 reassignment would entail waste and duplication out of

17 proportion to any gain in preserving the appearance of

18 fairness.”

19 Reassignment is appropriate in the present

20 circumstances. “[I]t is not unprecedented for a case to be

21 remanded to a different judge after a district court has

22 twice used an improper sentencing procedure.” United States

8 1 v. Hirliman,

(2d Cir. 2007) (citing United

2 States v. Brown,

(2d Cir. 1972)).

3 Having reimposed an identical sentence after the first

4 remand, the district judge may reasonably be expected to

5 have substantial difficulty ignoring his previous views

6 during a third sentencing proceeding. Moreover,

7 resentencing without eliciting the views of the defendant or

8 the prosecutor bespeaks a lack of receptivity to their views

9 and arguments. We cannot find on this record that Judge

10 Platt is personally biased against Day; but an objective

11 observer might nonetheless question his impartiality. See

12 United States v. Londono,

(2d Cir. 1996)

13 (“To reassign a case on remand, we need only find that the

14 facts might reasonably cause an objective observer to

15 question [the judge’s] impartiality . . . .” (citations and

16 internal quotation marks omitted) (alteration in original)).

17 Moreover, reassignment would not waste substantial judicial

18 resources because the sentencing followed a plea. See

19 Robin,

( “A judge who has presided over a

20 lengthy trial often gains an intimate insight into the

21 circumstances of the defendant’s crime, which may prove

22 uniquely useful in determining the sentence to be imposed,

9 1 whereas no such reason would normally exist upon sentencing

2 after a guilty plea.”). Accordingly, we direct that further

3 proceedings be assigned to a different judge.

4

5 CONCLUSION

6 We VACATE the sentence and REMAND for resentencing,

7 with instructions to reassign the case to a different judge.

10