9th Circuit rules 'Booker' requires resentencing by original judge

A defendant has a right to be resentenced by his original sentencing judge when his case has been remanded due to Booker error, the 9th Circuit has ruled.

The defendant was convicted of bank fraud and conspiracy to commit bank fraud. His conviction was affirmed but his sentence was vacated

On remand, the original sentencing judge imposed a 21-month prison term and ordered the defendant to serve two years of supervised release and pay a $7,500 fine.

The defendant challenged the newly-imposed sentence.

While that appeal was pending, the U.S. Supreme Court decided U.S. v. Booker. The defendant then successfully moved to have his sentence vacated and his case remanded for resentencing under the now-advisory sentencing guidelines.

The original sentencing judge transferred the case to a new judge, who sentenced the defendant to 33 months in prison, three years of supervised release and a $7,500 fine.

The defendant objected, claiming that under Booker he was entitled to be resentenced by the original judge.

The 9th Circuit agreed.

It said: We believe the proper course is for the original sentencing judge to conduct the resentencing, particularly where the judge felt strongly enough to make on-the-record statements about the propriety of the sentence he was required to impose under the guidelines. Thus, when a defendant preserves a claim of Sixth Amendment error and the sentencing judge - operating under pre- Booker mandatory guidelines - makes such statements, that judge must conduct the resentencing.

U.S. v. Lence (Lawyers Weekly USA No. 9933822) U.S. Court of Appeals, 9th Circuit No. 05-30236. July 27, 2006.