     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 18 U.S.C. § 3553(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 18 U.S.C. § 3553(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


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 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

11   U.S.C. §§ 846 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 21 U.S.C. §§

14   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



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 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 18 U.S.C. § 3553(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, 320 F.3d

20   355, 359 (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


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 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, 471 F.3d 64, 66-67 (2d Cir. 2006) (per curiam)

13   (citing United States v. Anati, 457 F.3d 233 (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 18 U.S.C. § 3553(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, 424 F.3d 239, 248-49 (2d Cir. 2005)

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


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 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 . . .,” 18 U.S.C. §

15   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, 329 F.3d 94, 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   553 F.2d 8, 10 (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.”   Id.

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, 503 F.3d 212, 216 (2d Cir. 2007) (citing United

 2   States v. Brown, 470 F.2d 285, 288-89 (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, 100 F.3d 236, 242 (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, 553 F.2d at 11 ( “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.




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