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May 10, 2011

Notable Sixth Circuit opinion on resentencing requirements

The Sixth Circuit has a notable little opinion today in US v. Garcia-Robles, No. 09-1980 (6th Cir. May 10, 2011) (available here), covering lots of ground concerning resentencing procedures. Here is how the opinion starts:

This is defendant Julio C. Garcia-Robles’s second sentencing appeal.  In our prior opinion, we vacated Garcia-Robles’s sentence as procedurally unreasonable and remanded for resentencing in a general remand order.   However, on remand, over defendant’s objections, the district court resentenced defendant to the same sentence without holding a resentencing hearing.  In this appeal, Garcia-Robles claims that his resentencing was procedurally unreasonable because he was denied his right to be present and allocute.  We agree and hold that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.  We further hold that when a plenary resentencing hearing is held, the district court is required to state its reasons for the sentence “in open court.”

May 10, 2011 at 11:59 AM | Permalink


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"This sentence is unreasonable. Redo it."
"Fine. We give the same sentence as before."
"No, it's unreasonable. You have to actually redo it."
"Oh, we were hoping you wouldn't notice that."

Posted by: NickS | May 10, 2011 12:22:30 PM

I certainly agree with this ruling. In the case of a general re-sentencing it should be as if the first sentencing simply did not happen. Possibly even to the point of not being able to reference the record of the first proceeding, except perhaps for witness impeachment or similar. I wonder what possessed the district court judge to take such a view of their job. They /had/ to know they were going to get called on it.

Posted by: Soronel Haetir | May 10, 2011 1:46:25 PM

I wonder what about it is actually “notable”? The opinion says that 100 percent of the circuits to have considered the question arrived at the identical result.

Actually, as the preceding posters have suggested, it is remarkable that the judge thought he could get away with what he did.

Posted by: Marc Shepherd | May 10, 2011 5:35:56 PM

my only problem with it is simple!

Where's the arrest order for "contempt of court" against the judge who was told to do something and REFUESED!

since that is certainly what would hapen to anyone who dared face one of them and then tell them to kiss off and do what you wanted anyway!

Posted by: rodsmith | May 10, 2011 10:25:16 PM

of course this whole thing is a joke!

based on the appeals courts own words!


"Given the government’s failure to adequately address the issue of prejudice, we
cannot hold the district court’s errors to be harmless. Garcia-Robles has yet to have the
opportunity to allocute regarding the district court’s penchant to impose an upward
variance, the very issue which required reversal by this court in 2009. Indeed, Garcia-
Robles expressly requested the opportunity to be present and speak at a resentencing
hearing, but this request was denied."


"Finally, Garcia-Robles requests that this matter be reassigned to a new district
court judge for resentencing upon remand.
[T]he principal factors considered . . . in determining whether further
proceedings should be conducted before a different judge are 1) whether
the original judge would reasonably be expected . . . to have substantial
difficulty in putting out of his 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.
Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir. 1980) (internal quotation marks and
citation omitted). Here, such reassignment is unnecessary as there is no evidence in the
record indicating that the district judge will have difficulty conducting de novo
sentencing procedures. Accordingly, “we are satisfied that [the judge] will re-visit the
matter with a completely open mind at the de novo resentencing that must now take
place[.]” Faulks, 201 F.3d at 209."

So let's let

first the court has TWICE violated the law and the constution in the person of this individual. Just how many friggin bits at the apple to do the damn job right does it get!

and second for some reason these same retards think this judge who has now been SLAPPED TWICE by this defendent who has dared to DEMAND the judge FOLLOW the LAW and the CONSTUTION is just gonna ignore all that and do it legally the third time? especialy consideirng his either blatent bias or criminal stupidity!?

all this shows is the appelate judges are just as screwed up or biased as he was!

Posted by: rodsmith | May 10, 2011 10:45:08 PM

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