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January 15, 2008

Quite a resentencing Day in the Second Circuit

The Second Circuit covers some notable and important procedural ground today in US v. Day, No. 05-4285 (2d Cir. Jan. 15, 2008) (available here).  The per curiam Day opinion starts this way:

Christopher Campbell Day pled guilty to conspiring to distribute and possess with intent to distribute over one thousand kilograms of marijuana.  He appeals from a memorandum and order of the United States District Court for the Eastern District of New York (Platt, J.) resentencing him, after a remand, to the same term of 180 months’ imprisonment.  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. In addition, by providing only a written sentencing explanation in the form of a memorandum and order, the district judge neglected 18 U.S.C. § 3553(c), which requires a sentencing judge to state “in open court” the reasons for imposing a particular sentence.  Consequently, we vacate the sentence and remand the case for resentencing by a different judge. Reassignment is appropriate because 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.

January 15, 2008 at 04:05 PM | Permalink


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Discount by 50% based on identity of district judge.

Posted by: David in NY | Jan 15, 2008 5:00:08 PM

One thousand kilograms of marijuana? Good Lord.

Posted by: Jay | Jan 15, 2008 7:59:41 PM

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