     14-983-cr
     United States v. Diaz

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
             Rulings by summary order do not have precedential effect. Citation to a summary order filed
     on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
     32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
     Court, a party must cite either the Federal Appendix or an electronic database (with the notation
     “summary order”). A party citing a summary order must serve a copy of it on any party not
     represented by counsel.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th
 3   day of February, two thousand fifteen.
 4
 5   PRESENT:            AMALYA L. KEARSE,
 6                       DEBRA ANN LIVINGSTON,
 7                       SUSAN L. CARNEY,
 8                                    Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12
13                       Appellee,
14
15                               v.                                      No. 14-983-cr
16
17   JOANNA DIAZ,
18
19                       Defendant-Appellant.
20
21
22   FOR JOANNA DIAZ:                                     COLLEEN P. CASSIDY, Of Counsel, Federal
23                                                        Defenders of New York, Inc., New York,
24                                                        NY.
25
26   FOR UNITED STATES OF AMERICA:                        MICAH SMITH, Justin Anderson, Assistant
27                                                        United States Attorneys, for Preet Bharara,
28                                                        United States Attorney for the Southern
29                                                        District of New York, New York, NY.
30
31        Appeal from a judgment of the United States District Court for the Southern District of
32   New York (Katherine B. Forrest, Judge).
 1          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 2   ADJUDGED, AND DECREED that the amended judgment of the District Court is VACATED,
 3   and the cause is REMANDED for resentencing, with instructions to reassign the case to a different
 4   judge.

 5           Defendant Joanna Diaz appeals from the District Court’s March 25, 2014 amended
 6   judgment convicting her, upon a plea of guilty, of one count of bribery conspiracy, in violation of
 7   Title 18, United States Code, Section 371, and sentencing her principally to 6 months’
 8   imprisonment, with the recommendation that that term be served in two three-month periods over
 9   the following two summers. We assume the parties’ familiarity with the underlying facts, the
10   procedural history of the case, and the issues on appeal.

11           Although Rules 35 and 36 of the Federal Rules of Criminal Procedure permit courts to
12   correct technical errors in a sentence, neither those rules nor any other rule of law “authorize the
13   court to . . . modify [its] written judgment to effectuate an intention that the court did not express in
14   its oral sentence.” United States v. DeMartino, 112 F.3d 75, 79 (2d Cir. 1997). In this case, the
15   government and Diaz both agree that the district court’s modification of Diaz’s sentence was
16   unfavorable to her and was improperly imposed in her absence and without her attorney present.
17   The government therefore consents to the vacatur of the amended judgment and a remand for
18   resentencing. We agree that the court’s modification of Diaz’s sentence was impermissible under our
19   precedents, and remand this case to the district court for resentencing. See id. (“Entry of an order in
20   the defendant’s absence increasing his sentence [is] impermissible.”).

21           Diaz requests that we remand her case with instructions to assign the case to a different
22   judge. “[T]he principal factors considered by us in determining whether further proceedings should
23   be conducted before a different judge are (1) whether the original judge would reasonably be
24   expected upon remand to have substantial difficulty in putting out of his or her mind previously-
25   expressed views . . . , (2) whether reassignment is advisable to preserve the appearance of justice, and
26   (3) whether reassignment would entail waste and duplication out of proportion to any gain in
27   preserving the appearance of fairness.” United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977).

28            Although we are confident that Judge Forrest would be able to put aside her previously-
29   expressed views regarding Diaz’s sentence, because Judge Forrest expressed her intent with respect
30   to any further resentencing so firmly in her response to Diaz’s letter seeking bail pending appeal we
31   conclude that the appearance of justice would be best served by reassignment in this instance. See
32   United States v. McDavid, 41 F.3d 841, 844 (2d Cir. 1994) (reasoning that a judge’s “pronouncement
33   that he would impose the same sentence upon remand to the district court persuades us to remand
34   to a different judge”).

35


                                                        2
1                                        CONCLUSION

2          For the reasons stated above, we VACATE the District Court’s March 25, 2014 amended
3   judgment and REMAND for resentencing, with instructions to reassign the case to a different
4   judge.

5
6                                                   FOR THE COURT:
7                                                   Catherine O’Hagan Wolfe, Clerk
8




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