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The 2d U.S. circuit Court of Appeals has removed a federal judge from a case for failing to tell a defendant that he was about to be resentenced. U.S. v. Day, No. 05-4285-cr. The 2d Circuit removed Judge Thomas Platt of the U.S. District Court for the Eastern District of New York for failing to notify admitted marijuana dealer Christopher Campbell Day, his lawyer or the prosecutor that he was resentencing Campbell to 15 years in prison. The prison term was the same 15 years Platt had given Campbell before the 2d Circuit vacated the sentence in 2006. But the fact that the new sentence was identical to the old one made no difference to the circuit. “By resentencing Day without providing notice to Day or his counsel, the district judge violated Day’s right to be present at resentencing and his right to notice that the court intended to impose an adverse non-Guidelines sentence,” the circuit said in a per curiam opinion. Day pleaded guilty to conspiring to distribute and possess with intent to distribute more than 1,000 kilograms of marijuana under 21 U.S.C. 846 and 841(b)(1)(A) and one count of conspiracy to distribute and possess with intent to distribute more than 100 kilograms of marijuana under 21 U.S.C. 846 and 841(b)(1)(B). Platt, combining the statutory minimum sentence for each count, gave Day 15 years behind bars. The 2d Circuit said it ordered its initial remand in the case because the “district court erroneously believed that the two minimum sentences must run consecutively, and because we were unable to discern from the record whether the court would have imposed the same sentence had it not misapprehended the law.” On Nov. 26, 2006, with the ball back in his court, Platt filed a memorandum announcing that Day would receive the same sentence. At the 2d Circuit, lawyers for both sides agreed that the case should be remanded because Platt had violated Day’s right to be present at resentencing, his right to counsel at resentencing and his right to receive notice that the court intended to impose an adverse non-Federal Sentencing Guidelines sentence. Both sides also agreed that Platt did not comply with the requirement of 18 U.S.C. 3553(c) that he state “in open court” the reasons for imposing his sentence. The 2d Circuit panel agreed. “Since a new sentence was imposed out of the presence of the defendant, his lawyer, and the prosecutor, we cannot confidently say that there has been no harm,” the court said. Fed. R. Crim. P. 3(i)(1)(C) requires that a defendant receive notice of an adverse nonguidelines sentence and, the 2d Circuit said, “failure to provide such notice amounts to plain error.” Day had argued that the case should be reassigned on remand because Platt obviously believed that 15 years is the right sentence and nothing could change his mind. The prosecution countered that there was no evidence of bias on the part of the judge and contended that his memorandum established a reasonable basis for the sentence. “Reassignment is appropriate in the present circumstances,” the circuit court said. “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.” The court continued, “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.”

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