USA v. LENCE
The Ninth Circuit Court of Appeals today released an amended order in USA v. LENCE, No. 05-30236, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.
O’SCANNLAIN, Circuit Judge:
We must decide whether a criminal defendant has a right to be resentenced by his original sentencing judge on remand following Booker error. I In June 2002, a jury convicted John Lence, an attorney and certified public accountant, of fourteen counts of bank fraud and one count of conspiracy to commit bank fraud. Chief Judge Donald W. Molloy presided at Lence’s trial and sentencing and calculated a base offense level of 6 with enhancements for amount of loss, more than minimal planning, and abuse of trust, resulting in an adjusted offense level of 20 and a sentencing range of 33-41 months. Chief Judge Molloy granted a downward departure because he termed Lence’s offense “outside of the heartland.” He also considered Lence’s relationship with his children and the loss of Lence’s law and certified public accountant licenses. He imposed a sentence of 24 months, the bottom of the sentencing range after the downward departure, a $7,500 fine, and three years of supervised release, stating at the time:
[I]t’s probably not the sentence I would give you, if I didn’t have the guidelines; I would give a different sentence. But under the circumstances, I’m going to give you a sentence at the lowest end of the guidelines that I can, based upon the counts of conviction and the determinations that I have made over the objections of the government and over your objec. . .
The opinion filed July 27, 2006, is hereby ordered amended as follows:
Slip Op. at 8422: Delete the old Section II.B, which comprises ΒΆΒΆ 3-4 and note 2 (from “That being said” to “original sentencing judge.”) Slip Op. at 8422: Insert a new Section II.B, which reads as follows:
“That being said, we have not yet decided who should preside at a full resentencing hearing on remand following Booker error. We believe the proper course is for the original sentencing judge to conduct the resentencing, particularly . . .