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November 27, 2022
Has anyone tracked how often district judges recuse from resentencing?
The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing). In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines. Here is part of the opinion's concluding section (with a few cites removed):
Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference. Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings. Buford, 532 U.S. at 64–65. This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.
The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation. My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....
In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals. The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse. United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979). Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.
Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right. But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.
November 27, 2022 at 10:04 AM | Permalink
Comments
There’s an astounding lack of self-awareness behind not realizing that this order just reveals him as a crybaby throwing a tantrum.
Posted by: Josh Lee | Nov 27, 2022 11:51:18 AM
Rare as it is I suspect it is more common that the appeals panel direct that a different judge handle following actions than for the district court judge to self-recuse as in this case.
Posted by: Soronel Haetir | Nov 28, 2022 11:46:30 AM