09-4405-cr
United States v. Peguero

                                  UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT


                                             SUMMARY ORDER
R U LIN GS BY SU M M A R Y O RD ER D O N OT H AVE PR EC ED EN TIA L EFFEC T . C ITATION TO A SUM M AR Y ORD ER FILED A FTER
J AN UA RY 1, 2007, IS PERM ITTED AN D IS GOVERNED BY F EDER AL R U L E O F A PPELLATE P RO CED UR E 32.1 A N D TH IS
C OU R T ’ S L OC AL R ULE 32.1.1. W H EN C ITIN G A SU M M A R Y O RD ER IN A DO CU M EN T FILED W ITH TH IS C OU R T , A PA RTY
M UST CITE EITHER THE F EDER AL A P P EN DIX OF AN ELECTRO NIC D ATA BASE ( W ITH TH E N OTA TIO N “ SU M M A R Y
OR DER ”). A PAR TY CITING A SUM M AR Y ORD ER M UST SERVE A C OPY OF IT ON A NY PA RTY NO T REPR ESENTED BY
CO UN SEL .


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 22nd day of February, two thousand ten.

PRESENT:    PETER W. HALL,
            GERARD E. LYNCH,              Circuit Judges,
            TIMOTHY C. STANCEU,*          Judge.
_______________________________________________________

United States of America,
                                                           Appellee,

                             v.                                                                    No. 09-4405-cr

Dionisio Peguero,
                                    Defendant-Appellant,
________________________________________________________

Appearing for Appellant:                         JANE SIMKIN SMITH , Millbrook, New York.

Appearing for Appellee:                          AVI WEITZMAN , Assistant United States Attorney,
                                                 (Katherine Polk Failla, Assistant United States Attorney, of
                                                 Counsel, on the brief), for Preet Bharara, United States
                                                 Attorney for the Southern District of New York, New York,
                                                 New York.

         UPON DUE CONSIDERATION whereof, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and REMANDED for


         *
          The Honorable Timothy C. Stanceu, of the United States Court of International Trade,
sitting by designation.
resentencing in accordance with this Order, and, for the reasons that follow, this Court further

directs that the case be reassigned to a different judge.

       Defendant Dionisio Peguero appeals from a judgment of conviction and sentence

imposed in the United States District Court for the Southern District of New York (Hellerstein,

J.) based on his guilty plea to illegally reentering the United States as an aggravated felon in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). Peguero was sentenced to 50 months incarceration

and 3 years supervised release and appealed to this court to review, inter alia, the district court’s

application of the Sentencing Guidelines as presumptively reasonable. Persuaded that the district

court had committed procedural error by applying the Guidelines as presumptively reasonable,

this court entered an order on August 19, 2009, vacating Peguero’s sentence and remanding the

case for resentencing. On September 25, 2009, following the remand, Peguero requested to

participate in the sentencing hearing. On October 14, 2009, the district court entered a

“Resentencing Order” without a hearing and imposed the same sentence as that originally

imposed. Peguero and the Government agree that the sentence should be vacated and the case

remanded for resentencing to take place with Peguero present in open court. United States v.

Arrous, 320 F.3d 355, 359 (2d Cir. 2003). Peguero also asserts that on remand the matter should

be reassigned to a different judge. The Government opposes that request. We assume the

parties’ familiarity with the relevant facts, procedural history and issues presented for review.

       As the government concedes, our remand order clearly vacated Peguero’s sentence and

sent the case back to the district court for “resentencing.” Such an order clearly contemplates a

full sentencing procedure, complying with the procedural rules set forth in Federal Rule of

Criminal Procedure 32, including the right of the defendant to make written and oral submissions


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with respect to the sentence to be imposed. Pursuant to 18 U.S.C. §§ 3553(c) and 3742(g), as

well as Rule 43(a) of the Federal Rules of Criminal Procedure, a sentencing court is required to

state its reasons for the sentence imposed in “open court.” Exceptions to this rule, found under

Federal Rule of Criminal Procedure 43(b)(4), are not applicable here. See e.g., Arrous, 320 F.3d

at 359. As agreed by the parties, we therefore vacate the sentence of the district court and

remand for resentencing in open court.

       With the exception of instances involving personal bias, we consider three principal

factors in determining if reassignment to a new judge is appropriate: (1) whether the original

judge would “have substantial difficulty in putting out of his or her mind previously-expressed

views or findings determined to be erroneous”; (2) whether reassignment would help to “preserve

the appearance of justice”; and (3) “whether reassignment would entail waste and duplication out

of proportion to any gain in preserving the appearance of fairness.” United States v. Robin, 553

F.2d 8, 10 (2d Cir. 1977). “To reassign a case on remand, we need only find that the facts might

reasonably cause an objective observer to question [the judge’s] impartiality.” United States v.

Londono, 100 F.3d 236, 242 (2d Cir. 1996) (quoting Pescatore v. Pan American World Airways,

Inc., 97 F.3d 1, 21 (2d Cir. 1996)) (internal quotation marks omitted) (alteration in original)

(abrogated on other grounds by United States v. Mercurris,192 F.3d 290, 294 (2d Cir. 1999)).

       There is no evidence in the record to suggest that Judge Hellerstein is not impartial.

Indeed, we note that the original sentence imposed by Judge Hellerstein was a below-Guidelines

sentence. It accounted for time-served by Peguero in an immigration hold that would not be

credited as part of his federal sentence. We are fully confident that on remand, Judge Hellerstein




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could and would fairly listen to any argument Peguero might make for a lower sentence than that

originally imposed.

       Peguero does not seriously argue that Judge Hellerstein would not in fact be open-

minded. He does argue, however, that the judge’s quick reimposition of the same sentence,

without hearing further argument, and without acknowledging Peguero’s letter of September 25,

2009, which expressly requested a new sentencing hearing and the opportunity to proffer

additional submissions for the court’s consideration, creates an appearance that new arguments

will not be fairly heard. It is unclear what happened to that September 25 letter between its

transmission and its docketing on November 12, 2009. See Dist. Ct. Doc. No. 18 (filed Nov. 12,

2009). It is also unclear whether Judge Hellerstein in fact considered the letter in advance of

entering the Resentencing Order. Nonetheless, because the request was made in connection with

the first remand for resentencing and for whatever reason was neither acknowledged nor acted

upon, and because part of what was sought in that request (a resentencing hearing) is what we

now must order in this disposition, there arise concerns about the appearance of the processes

employed to impose a sentence on the appellant.

       Precedent suggests that this is an appropriate occasion for remand to a different judge. In

United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008), where the district court similarly

reimposed an identical sentence after a first remand without holding a hearing or “eliciting the

views of the defendant or the prosecutor,” we concluded – without finding any personal bias on

the part of the district judge – that reassignment was appropriate because “an objective observer

might nonetheless question [the district judge’s] impartiality.” Id. We are mindful that “in a few

instances there may be unusual circumstances where . . . assignment to a different judge is


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salutary and in the public interest, especially as it minimizes even a suspicion of partiality.”

United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977). We are also mindful, and state

unequivocally in regard to this case, that “[i]n such circumstances our remand does not imply any

personal criticism of the trial or the sentencing judge.” Id. at 10. Balancing preservation of

appearances of justice in this case against the other factors identified in Robin, however, and

exercising an abundance of caution, we find this to be one of those “unusual circumstances.” Id.

Accordingly, upon remand, the District Court is directed to reassign this case to a different judge.

       Finally, we note that Peguero is scheduled to be released from incarceration in May 2010

and will be deported from the United States at the end of that month. For that reason, it is further

ordered that Peguero’s resentencing proceedings be concluded on or before March 31, 2010.

       For the reasons stated above, the judgment of the district court is VACATED and the

case is REMANDED for resentencing consistent with this decision. The mandate shall issue

forthwith.



                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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