                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0678n.06

                                           No. 16-2296

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Dec 08, 2017
UNITED STATES OF AMERICA,                                 )
                                                                              DEBORAH S. HUNT, Clerk
                                                          )
       Plaintiff-Appellee,                                )
                                                          )     ON APPEAL FROM THE
v.                                                        )     UNITED STATES DISTRICT
                                                          )     COURT FOR THE EASTERN
TIMOTHY DANIELS,                                          )     DISTRICT OF MICHIGAN
                                                          )
       Defendant-Appellant.                               )
                                                          )

BEFORE: BOGGS, WHITE, and DONALD, Circuit Judges.

       PER CURIAM. Defendant-Appellant Timothy Daniels pleaded guilty to possession of a

weapon in a federal court facility, 18 U.S.C. § 930(e)(1), criminal contempt of court, 18 U.S.C.

§ 401(3), and obstruction of justice, 18 U.S.C. § 1503. The district court sentenced Daniels to

120 months’ imprisonment, forty-two months above the United States Sentencing Guidelines’

advisory range. Daniels appealed, challenging the district court’s failure to state on the record a

reason for its above-guidelines sentence or whether the sentence was the result of a departure or

a variance. We held that “the district court’s failure to state in open court its reason for imposing

an above-Guidelines sentence was procedurally unreasonable,” and “VACATE[D] Daniels’

sentence and REMAND[ED] for resentencing.” United States v. Daniels, 641 F. App’x 481, 492

(6th Cir. 2016).

       On remand, the district court interpreted the scope of our remand narrowly:

       THE COURT: [W]hat the Sixth Circuit has said is the reasons have to be
       pronounced here in court. And that’s what I’m going to do to arrive at the same
       sentence . . . .
No. 16-2296
United States of America v. Timothy Daniels


(R. 40, PID 174–75.) Defense counsel objected “to proceeding by simply reading into the record

the reasons that the court would have done last time” because Daniels should be “allowed to

present his side of the circumstances.” (Id. at 179.) The district court disagreed, believing it was

“simply directed to place in open court its reasons for getting to the sentence as just announced.”

(Id. at 180.) This appeal followed.

       We review the scope of a remand de novo. United States v. Orlando, 363 F.3d 596, 600

(6th Cir. 2004).

       In this circuit, the criteria to establish a limited versus general remand are well
       settled and, pursuant to 28 U.S.C. § 2106, appellate courts have broad discretion
       in defining the scope of a given remand. See [United States v.] Campbell,
       168 F.3d [263,] 265 [(6th Cir. 2012)] (citing United States v. Moore, 131 F.3d
       595, 597 (6th Cir. 1997)). A limited remand must “explicitly outline the issues to
       be addressed by the district court and create a narrow framework within which the
       district court must operate. General remands, in contrast, give district courts
       authority to address all matters as long as remaining consistent with the remand.”
       Id. at 265 (citation omitted). A “majority of the circuits that have spoken on this
       issue, including this one, follow a basic rule that a district court can review
       sentencing matters de novo unless the remand specifically limits the lower court’s
       inquiry.” Id. Further, “in light of the general principle of de novo consideration
       at resentencing, this court should leave no doubt in the district judge’s or parties’
       minds as to the scope of the remand. The language used to limit the remand
       should be, in effect, unmistakable.” Id. at 268.

United States v. Obi, 542 F.3d 148, 153–54 (6th Cir. 2008).

       Our remand was not “unmistakably” limited. The opinion did not limit the scope of the

district court’s sentencing authority on remand, nor did we create a narrow framework within

which the district court was required to operate on remand. Although we explained that a

remand was warranted “[b]ecause the district court did not address the departure or the reasons

for it at sentencing,” Daniels, 641 F. App’x at 482, this was the reason for our remand, not, as

the government argues, a limitation on it. Thus, a remand for de novo resentencing is warranted.



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No. 16-2296
United States of America v. Timothy Daniels

        Daniels additionally requests that we “order reassignment to a different district judge.”

(Appellant Br. 12.) We have authority to order the reassignment of a case to a different district

court judge on remand pursuant to 28 U.S.C. § 2106. To determine whether reassignment is

necessary, we consider:

        (1) whether the original judge would reasonably be expected to have substantial
        difficulty in putting out of his or her mind previously expressed views or findings;
        (2) whether reassignment 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.

Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006) (citing Sagan v. United States,

342 F.3d 493, 501 (6th Cir. 2003)). The authority to order reassignment “is an extraordinary

power and should be rarely invoked. . . . Such reassignments should be made infrequently and

with the greatest reluctance.” Armco, Inc. v. United Steelworkers of Am., AFL-CIO, Local 169,

280 F.3d 669, 683 (6th Cir. 2002) (citation omitted). Here, Daniels argues that the district court

demonstrated a “lack of receptivity to defense counsel’s arguments” because it was “unwilling[]

to reconsider [its] view of” Daniels. (Appellant Br. 25-26.) We disagree. The district court

declined to hear argument because it believed that our remand was limited to explaining to

Daniels in open court the previously selected sentence. Nothing in the record suggests that the

district court will have difficulty in putting aside its previously expressed views or findings in the

face of additional arguments or information. Thus, we decline to reassign the case to a different

district judge.

        Accordingly, we VACATE Daniels’s sentence and REMAND for a de novo

resentencing.




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