    06-2026-cr
    United States v. James Johnson



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUMENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM MARY ORDER”). A PARTY CITING A SUM MARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           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 28th day of July, two thousand ten.

    PRESENT:
                ROSEMARY S. POOLER,
                DEBRA ANN LIVINGSTON,
                       Circuit Judges,
                DAVID G. TRAGER,*
                       District Judge.
    __________________________________________

    United States of America,

                                Appellee,

                       v.                                              06-2026-cr


    James Johnson,

                      Defendant-Appellant.
    ___________________________________________

    FOR APPELLANT:                    DAVID A. LEWIS, Federal Defenders of New York, Inc., New
                                      York, NY




             *
            David G. Trager, of the United States District Court for the Eastern District of New
    York, sitting by designation.
FOR APPELLEE:                  BERIT W. BERGER, Assistant United States Attorney, of counsel
                               to Benton J. Campbell, United States Attorney for the Eastern
                               District of New York (David C. James, on the brief)


     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Sterling Johnson, J.).

    UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be VACATED, and that this case be
REMANDED for further proceedings consistent with this order.

        Defendant was convicted of murder in the course of a robbery in violation of 18 U.S.C. §
924(j)(1), among other offenses. In 2008, a panel of this Court vacated defendant’s life sentence
and remanded for resentencing. See United States v. Johnson, 273 Fed. Appx. 95, 101 (2d Cir.
2008). On remand, the district court declined to conduct a new sentencing hearing and instead
issued a new sentencing opinion once again sentencing defendant to life. We assume the parties’
familiarity with the procedural history, facts, and issues on appeal.

        As the government concedes, this Court’s order vacating defendant’s sentence required
the district court to conduct a de novo resentencing. See United States v. Maldonado, 996 F.2d
598, 599 (2d Cir.1993) (“[W]hen a sentence has been vacated, the defendant is placed in the
same position as if he had never been sentenced.”); see also United States v. Barnes, 948 F.2d
325, 330 (7th Cir. 1991); United States v. Schoenhoff, 919 F.2d 936, 938 (5th Cir. 1990). This
requires, among other things, that the defendant be afforded a right of allocution, viz. that the
defendant be permitted “to speak or present any information to mitigate the sentence.” Fed. R.
Crim. P. 32(i)(4)(A)(ii); see also United States v. Margiotti, 85 F.3d 100, 103 (2d Cir. 1996). In
spite of defendant’s protests, the district court did not allow defendant to be heard prior to
imposing sentence. This was reversible error. See United States v. Gonzeles, 529 F.3d 94, 97
(2d Cir. 2008); see also United States v. Muhammad, 478 F.3d 247, 250-51 (4th Cir. 2007).

        Since the government concedes that the district court’s Rule 32 violation requires
vacatur, the sole question on appeal is whether we should reassign this case to a different district
judge on remand. “Remanding a case to a different judge is a serious request rarely made and
rarely granted.” United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006). Nevertheless, a
case may be reassigned on remand “to preserve the appearance of justice.” United States v.
Campo, 140 F.3d 415, 420 (2d Cir. 1998) (quoting United States v. Robin, 553 F.2d 8, 10 (2d
Cir. 1977) (per curiam) (en banc)). Specifically, “[a]bsent proof of personal bias ... the principal
factors ... are (1) whether the original judge would reasonably be expected upon remand to have
substantial difficulty in putting out of his or her mind previously expressed views or findings
determined to be erroneous or based on evidence that must be rejected, (2) whether
reassignement is advisable 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.” Robin, 553 F.2d at 10 (2d Cir. 1977).

                                                 2
        In this case, we conclude, in the exercise of our “considerable discretion,” United States
v. Hernandez, 604 F.3d 48, 55 (2d Cir. 2010), t`hat reassignment of the case to a different judge
is advisable. Though we do not doubt that Judge Johnson would comply faithfully with our
instructions following remand, and express no view as to the proper sentence in this case, the
number of errors that have attended defendant’s repeated sentencing proceedings could lead a
reasonable observer to question the court’s impartiality. Cf. United States v. Hirliman, 503 F.3d
212, 216 (2d Cir. 2007) (noting that “it is not unprecedented for a case to be remanded to a
different judge after a district court has twice used an improper sentencing procedures”).
Though we are mindful of the inefficiencies associated with reassignment, we further note that
because defendant is entitled to a de novo resentencing, any district judge would be required to
update the record and re-weigh the factors contained in 18 U.S.C. § 3553(a). See Hernandez,
604 F.3d at 56.

        Accordingly, the judgment of the district court is VACATED and REMANDED, and we
direct that the case be assigned to a different judge for resentencing.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




                                                3
