                                                                           FILED
                                                  United States Court of Appeals
                      UNITED STATES COURT OF APPEALS      Tenth Circuit

                                                                        July 12, 2017
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 16-1122
 v.
                                             (D.C. No. 1:12-CR-00223-JLK-3)
                                                        (D. Colo.)
 MICHAEL DEAN SPAULDING,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, O’BRIEN, and HARTZ, Circuit Judges.


      Michael Spaulding was sentenced to 137 months’ imprisonment after

pleading guilty to charges stemming from his sale of methamphetamine. He

contends that the district court committed procedural errors when it refused to

credit his acceptance of responsibility and rejected the government’s

recommended downward departure for substantial assistance. The government

agrees with Mr. Spaulding. And after reviewing the record, so do we.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The relevant facts are as follows. Acting as a courier, Mr. Spaulding sold

two ounces of methamphetamine to an undercover federal agent. After his arrest,

Mr. Spaulding pleaded guilty to distribution of methamphetamine and conspiracy

to do the same. He also agreed to help the government investigate and prosecute

the other members of the conspiracy. In exchange, the government joined Mr.

Spaulding in requesting a sentencing reduction for acceptance of responsibility; it

further promised to file a motion for downward departure based on his substantial

assistance in the investigation. Ultimately the government recommended a

sentence of 77–96 months.

      The district court saw the case differently and sentenced Mr. Spaulding to

137 months’ imprisonment. It first denied the requested three-level reduction for

acceptance of responsibility. In the district court’s view, acceptance of

responsibility requires the defendant to do more than plead guilty and spare the

government the expense of trial. The additional conduct could be, for example,

taking steps “to deal with the victims” or to combat the defendant’s drug

addiction. R., Vol. 3 at 48–50. The court then granted the government’s motion

for a downward departure based on substantial assistance. But it rejected the

government’s recommended sentence and did not explain how the departure

affected its sentencing. The next day, Mr. Spaulding filed a motion to withdraw

his guilty plea, which the court granted. The case then proceeded to a bench trial

(in which Mr. Spaulding admitted his guilt) and a second sentencing proceeding

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(again with the result of 137 months). On appeal, however, we found that the

district court lacked jurisdiction to permit Mr. Spaulding to withdraw his original

guilty plea. United States v. Spaulding, 802 F.3d 1110 (10th Cir. 2015).

Accordingly, all actions taken after the first sentencing were null and void. We

said that Mr. Spaulding could file a new direct appeal after the district court

reimposed the original sentence, id. at 1113 n.1, and he does so now. The

government has filed a brief supporting Mr. Spaulding’s arguments.

      This court’s earlier opinion suggested that the district court might have

committed procedural errors in imposing the sentence at issue, but there was no

need to decide the question. See id. at 1113 n.1, 1114 n.3, 1117 n.7. We now

agree with the government and conclude that the district court erred, so we vacate

Mr. Spaulding’s sentence and remand for resentencing.

      First, Mr. Spaulding contends the court erred in its denial of a reduction for

acceptance of responsibility. Unlike the district court, we do not read § 3E1.1 of

the Guidelines and the relevant commentary to mean that confessing and pleading

guilty can never suffice to show acceptance of responsibility. In fact, the

Sentencing Commission seems to accept some variation of this, explaining that

pleading guilty before trial “combined with truthfully admitting the conduct

comprising the offense of conviction . . . will constitute significant evidence of

acceptance of responsibility.” USSG § 3E1.1 cmt. n.3. The commentary does not

say that additional conduct is required to prove acceptance of responsibility. In

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fact, the Guidelines further explain: “However, this evidence may be outweighed

by conduct of the defendant that is inconsistent with . . . acceptance of

responsibility.” Id. n.3. This provision indicates that, absent contradictory

evidence that “outweigh[s],” pleading guilty will generally demonstrate

acceptance of responsibility.

      To be clear, we do not decide whether Mr. Spaulding had accepted

responsibility or not. Whether countervailing evidence outweighs Mr.

Spaulding’s confession and guilty plea is a factual determination that “[t]he

sentencing judge is in a unique position to evaluate.” Id. n.5. And this court

would extend “great deference” in reviewing the district court’s factual findings

on that score. Id. We hold only that the district court erred in believing that

acceptance of responsibility always requires “something other than simply

show[ing] up in court and plead[ing] guilty.” R., Vol. 3 at 50.

      We consider next the district court’s actions on the government’s motion

for a downward departure based on substantial assistance. As the prior panel

noted, the district court “granted the government’s request” but “gave no

indication of how it valued Spaulding’s assistance.” Spaulding, 802 F.3d at 1114

n.3. “Despite granting the government’s motion, the district court never applied

the substantial-assistance departure provisions. Thus, the district court never

calculated and never considered an appropriate advisory guidelines range.” Id.

“[F]ailing to adequately explain the chosen sentence” is procedural error. Gall v.

                                         -4-
United States, 552 U.S. 38, 51 (2007). On remand, then, the district court should

determine the appropriate reduction by considering some or all of the factors

described in the Guidelines § 5K1.1 (and any other factors it finds relevant),

while giving “[s]ubstantial weight . . . to the government’s evaluation of the

extent of [Mr. Spaulding’s] assistance.” USSG § 5K1.1 cmt. n.3. And it should

“state in open court the reasons for its imposition of the particular sentence.”

18 U.S.C. § 3553(c).

      Finally, Mr. Spaulding requests that we reassign the case to a different

district judge on remand. We decline to do so. Reassignment is “extraordinary”

relief and is therefore appropriate “only when there is proof of personal bias or

under extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th

Cir. 1996). Mr. Spaulding has pointed to nothing in the record to demonstrate

personal bias. He invokes the district judge’s hostility to plea-bargaining, see

Spaulding, 802 F.3d at 1116 n.4, but that fact alone does not constitute extreme

circumstances justifying reassignment. Mr. Spaulding also cites several decisions

granting reassignment when the district court’s sentence had repeatedly been

invalidated, but this case does not present the same situation. Because our prior

decision concerned only the district court’s jurisdiction, this is the first time the

district court’s sentence has been considered on the merits.




                                          -5-
     We VACATE Mr. Spaulding’s sentence and REMAND for resentencing.

We DENY the request for reassignment.

                                          ENTERED FOR THE COURT

                                          Timothy M. Tymkovich
                                          Chief Judge




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