Federal Judiciary

United States v. DeMott, 513 F.3d 55 (2d Cir. 2008)

In this post-Booker world, it's hard to believe that a district court could commit so many errors in one case -- so many, in fact, that even the Government conceded that the case had to remanded for resentencing.  Those errors included violating the defendant's right: (1) to be present at resentencing; (2) to counsel at resentencing; and (3) to notice that the court intended to impose an adverse non-Guidelines sentence.  The court also failed to comply with 18 U.S.C. § 3553(c), which requires a sentencing judge to state "in open court" the reasons for imposing a particular sentence.

Taking the matter even further, the Second Circuit directed that the case should be reassigned upon remand.  Specifically, it found that:

Having reimposed an identical sentence after the first remand, the district judge may reasonably be expected to have substantial difficulty ignoring his previous views during a third sentencing proceeding.  Moreover, resentencing without eliciting the views of the defendant or the prosecutor bespeaks a lack of receptivity to their views and arguments.  We cannot find on this record that Judge Platt is personally biased against Day; but an objective observer might nonetheless question his impartiality.