United States v. A. Eddy Zai ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0536n.06
Case No. 22-3371
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Dec 21, 2022
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff - Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
A. EDDY ZAI, )
Defendant - Appellant. ) OPINION
)
Before: COLE, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Eddy Zai pled guilty to nine counts of bank
fraud, bank bribery, money laundering, and false statements to a financial institution. After his
release from prison and serving some of his term of supervised release, Zai moved for early
termination of his supervised release. The district court denied the motion. Zai then moved for
modification of the terms of his supervised release. Again, the district court denied his motion.
Zai appeals both district court orders. He first argues that his plea agreement did not waive
his right to appeal these orders. Next, he contends that the district court abused its discretion when
it denied both of his motions without explanation. Finally, Zai seeks reassignment to a different
district court judge if the court were to vacate and remand.
Because Zai did not waive his right to challenge the denial of a motion to modify or
terminate supervised release, we consider his appeal. Further, because the record does not indicate
whether the district court considered the relevant § 3553(a) factors when denying Zai’s motions,
we find that the district court abused its discretion. We therefore vacate the district court’s denial
No. 22-3371, United States v. Zai
of both motions and remand for reconsideration with adequate explanation. We also deny Zai’s
request for reassignment to a different judge because the factors under Rorrer do not warrant
reassignment.
I.
In November 2012, Zai pled guilty to conspiring with Anthony Raguz, the Chief Operating
Officer of St. Paul Croatian Federal Credit Union (“St. Paul”), to defraud St. Paul by fraudulently
obtaining millions of dollars in loans. His plea agreement contained a “Waiver of Appellate
Rights” section in which Zai waived his rights to directly appeal his conviction and sentence, as
well as to challenge them collaterally through a post-conviction proceeding.
The court sentenced Zai to concurrent imprisonment terms of sixty months on count one
and eighty-seven months on the remaining counts, followed by concurrent terms of three and five
years of supervised release. It also ordered Zai to pay restitution in the amount of $23,623,294.91.1
Zai served his prison sentence and, on July 19, 2019, began his term of supervised release.
His term of supervised release is scheduled to terminate on July 18, 2024. On November 4, 2021,
he filed a pro se motion for early termination of supervised release. His motion included
information about his service as a “model inmate” at USP Hazelton, the courses he took and taught,
the mentorship he provided, and his efforts to maintain relationships with his children. See DE
268, Mot. for Early Termination, PageID 4154. Zai recounted how he obtained gainful
employment, resumed his role as an involved parent, and engaged in further mentorship upon
release. Finally, he requested early termination to “move forward with [his] life” and to mitigate
1
Zai appealed the district court’s restitution order, which this Court affirmed. See United States
v. Zai, 564 F. App’x 215, 215-16 (6th Cir. 2014) (per curiam).
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difficulties related to traveling for work and seeing his children. Id. at PageID 4155. He attached
four generous reference letters to his motion.
The Probation Office’s March 21, 2022 Supervision Report addressed Zai’s motion. It first
acknowledged that “[t]here have been no issues of noncompliance and Mr. Zai has appeared to
adjust well in the community” and noted his gainful employment and income, including his
payment of approximately $22 million of his $23.6 million restitution obligation. DE 273, Order,
PageID 4171-72. The Probation Office also reported that Zai reached an agreement with the
government’s Financial Litigation Program (“FLP”) to satisfy the remaining restitution balance,
and that the FLP would monitor Zai’s compliance with the agreement if the court were to terminate
supervision. Further, the Supervision Report stated that, due to Zai’s payment agreement with the
FLP, the government did not oppose Zai’s request for early termination. However, despite Zai’s
behavior and the government’s lack of opposition to his motion, the Probation Office “d[id] not
recommend early termination due to Mr. Zai continuing to owe restitution in this case.” Id. at
PageID 4172.
Two days after the Probation Office issued its Report opposing early termination, the
district court denied Zai’s motion by refiling the Supervision Report, checking the box next the
statement “The Request is Denied,” and signing the last page. Id. at PageID 4173.
After receiving this denial, Zai moved to modify his supervised release conditions. He
requested permission to travel internationally without advance permission from the court or
Probation Office, as it was critical to his continued employment. Three days later, without any
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position on the requested relief filed on the record by the government or the Probation Office, the
court denied the request without explanation. Zai appealed the district court’s orders.2
II.
This court reviews de novo whether an appeal waiver bars an appeal. United States
v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). “A defendant may waive any right, even a
constitutional one, in a plea agreement, so long as he knowingly and voluntarily relinquishes the
right.” United States v. Curry, 547 F. App’x 768, 770 (6th Cir. 2013) (citing United States
v. Gibney, 519 F.3d 301, 305-06 (6th Cir. 2008)).
If Zai has not waived his right to appeal the district court’s denial of motions for early
termination or modification of supervised release, the court reviews the district court’s decisions
for abuse of discretion. United States v. Suber, 75 F. App’x 442, 443 (6th Cir. 2003); cf. United
States v. Lowenstein, 108 F.3d 80, 85-86 (6th Cir. 1997) (reviewing revocation of supervised
release for abuse of discretion). To find that a district court abused its discretion, we must have “a
definite and firm conviction that the trial court committed a clear error of judgment by relying on
clearly erroneous findings of fact, using an erroneous legal standard, or improperly applying the
law.” United States v. Barcus, 892 F.3d 228, 235 (6th Cir. 2018) (quoting United States v. Carter,
463 F.3d 526, 528 (6th Cir. 2006) (internal quotations omitted)).
III.
Zai first argues that his plea agreement’s appellate waiver does not bar his right to appeal
the district court’s denial of his motions for early termination and modification of release. Next,
he asserts that the district court abused its discretion by failing to consider and address the relevant
2
The government states that Zai did not file his notice of appeal concerning the district court’s
denial of his motion for early termination within fourteen days of the court’s order pursuant to
Federal Rule of Appellate Procedure 4(b) but waives its objection.
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§ 3553(a) sentencing factors when denying his motions. Finally, Zai argues that the case should
be reassigned to a different judge on remand because the judge has shown bias against Zai.
As a threshold matter, the appellate waiver does not bar Zai’s right to appeal the district
court’s denial of his motions. Further, upon review of the district court’s actions, we find that it
abused its discretion by denying Zai’s motions without any indication that it considered or
addressed the relevant § 3553(a) sentencing factors when making its decision. We therefore vacate
the district court’s orders and remand for reconsideration with adequate explanation. We deny
Zai’s request for reassignment because the judge has not shown bias against Zai, and it would
waste judicial resources disproportionate to the preservation of the appearance of fairness.
A.
Zai argues that the appellate waiver in his plea agreement did not preclude his right to
appeal the district court’s denial of his motions for early termination and modification of
supervised release. He contends that the appellate waiver prohibits only direct appeals of and post-
conviction collateral attacks to his conviction or sentence. Because his appeal of the court’s denial
of his motions is neither a direct appeal nor a collateral attack, he argues that it falls outside the
scope of the waiver. In response, the government argues that because Zai waived his right to
appeal his sentence and supervised release is part of that sentence, his appeal is barred. We agree
with Zai.
To interpret the scope of the appellate waiver, courts employ “traditional tools of contract
interpretation.” Curry, 547 F. App’x at 770 (citing United States v. Freeman, 640 F.3d 180, 194
(6th Cir. 2011)). “But because plea agreements’ constitutional and supervisory implications raise
concerns over and above those present in the traditional contract context, in interpreting such
agreements we hold the government to a greater degree of responsibility than the defendant . . . for
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No. 22-3371, United States v. Zai
imprecisions or ambiguities in the plea agreements.” Freeman, 640 F.3d at 194 (quoting United
States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011) (alteration in original)). Any ambiguity in a
plea agreement is construed against the government, “especially because the government can take
steps in drafting a plea agreement to avoid imprecision.” Id. (quoting Bowman, 634 F.3d at 360(internal citations omitted)).
In Zai’s plea agreement, the “Waiver of Appellate Rights” section reads as follows:
Defendant acknowledges having been advised by counsel of Defendant’s
rights, in limited circumstances, to appeal the conviction or sentence in this case,
including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the
conviction or sentence collaterally through a post-conviction proceeding, including
a proceeding under 18 U.S.C. § 2255. Defendant expressly and voluntarily waives
those rights, except as specifically reserved below. Defendant reserves the right to
appeal: (a) any punishment in excess of the statutory maximum; (b) any sentence
to the extent it exceeds the maximum of the sentencing range . . . ; (c) the Court’s
determination of Defendant’s Criminal History Category; (d) a restitution order to
the extent it exceeds $16.7 million; or (e) the imposition of a fine. Nothing in this
paragraph shall act as a bar to Defendant perfecting any legal remedies Defendant
may otherwise have on appeal or collateral attack with respect to claims of
ineffective assistance of counsel or prosecutorial misconduct.
DE 112, Plea Agreement, PageID 896-97.
The government relies on an unpublished Sixth Circuit opinion to argue that, because Zai’s
period of supervised release is part of his sentence, his waiver of his right to appeal his sentence
bars the instant appeal. CA6 R. 13, Appellee Br., at 21 (citing United States v. Nykoriak, 803 F.
App’x 919, 920 (6th Cir. 2020) (Gibbons, J.)). In Nykoriak, the panel found that the petitioner
waived his right to appeal the denial of a motion for early termination because the petitioner’s plea
agreement waived “any right he may have to appeal his sentence,” except for one express
exclusion: the right to challenge an above-guidelines-range sentence. Id. at 920 (emphasis added).
The panel acknowledged that the plea agreement’s broad waiver did not specifically exclude the
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ability for the petitioner to appeal a denial of a motion for early termination, and that his appeal
from such a denial was barred. Id.; see also United States v. Winans, 748 F.3d 268, 270 (6th Cir.
2014) (“Defendant waives any right he may have to appeal his conviction . . . [and] any right he
may have to appeal his sentence.”) (emphasis added).3
Unlike the waiver in Nykoriak, Zai’s appellate waiver is more limited. Instead of broadly
waiving “any” appellate right, Zai agreed specifically to waive the right to appeal his conviction
or sentence and the right to make a post-conviction collateral attack, including under 28
U.S.C. § 2255. That waiver does not expressly waive the right to appeal the denial of a motion to
modify or terminate a term of supervised release. On the other hand, the five exceptions to the
appellate waiver included in his plea agreement do not specifically permit such an appeal.
This ambiguity compels the court to construe the terms of the agreement against the
government and in favor of the right to appeal. See Freeman, 640 F.3d at 194. The government
could have drafted a more precise appellate waiver provision in the plea agreement. Such explicit
waivers in the context of § 3582(c) motions for modification of a term of imprisonment, for
instance, have barred defendants’ attempts to appeal the denial of these motions. Cf. United States
v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017) (finding early termination under § 3583(e)(1)
“sufficiently analogous” to sentence reduction under § 3582(c)(2)). In United States v. Clardy, we
affirmed the district court’s decision that a defendant’s plea agreement barred his § 3582(c) motion
when the defendant’s appellate waiver included “any collateral attack, including, but not limited
to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and /or 18 U.S.C. § 3582(c).”
3
Winans was later affirmed in United States v. Grundy, 844 F.3d 613 (6th Cir. 2016), a case
involving a similarly broad appellate waiver. See 844 F.3d at 614 (defendant agreed to “waive[ ]
any right he may have to appeal his sentence” if “the sentence imposed does not exceed the 210
month maximum allowed by Part 3 of th[e] agreement.”) (alterations in original) (emphasis added).
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877 F.3d 228, 229 (6th Cir. 2017) (per curiam) (emphasis added). The Seventh Circuit has upheld
a similarly explicit waiver encompassing the right to seek “modification” of a sentence. See United
States v. Bridgewater, 995 F.3d 591, 595 (7th Cir. 2021) (defendant “waived ‘the right to seek
modification of . . . any aspect of the . . . sentence’”) (emphasis added). But faced with an appellate
waiver lacking this specificity, the Tenth Circuit allowed an appeal of the denial of a motion for
early termination of probation because it was based on events taking place after the imposition of
the original sentence. See United States v. Hartley, 34 F.4th 919, 927 (10th Cir. 2022) (“Had the
government wished to bar appeals from the denial of motions for early termination of probation,
it could have included specific language.”).
Further, the existence of new circumstances makes an appeal of the denial of a motion to
modify or terminate the conditions of supervised release different from a direct appeal or collateral
attack to an original conviction or sentence. For example, motions for sentence reductions under
18 U.S.C. § 3582(c) are treated differently than an attack on an original sentence under 28 U.S.C.
§ 2255. See Clardy, 877 F.3d at 230 (“Motions under § 2255 and § 2241 . . . are commonly
referred to as collateral attacks; motions under § 3582(c)—which merely allows courts to reduce
sentences—are not.”). Similarly, Zai does not request a change to the terms of his original sentence
but, instead, requests that the court consider whether to grant early termination by considering new
circumstances. Zai could not have asked for termination of his supervised release, or modification
of its terms, when his sentence was imposed because the circumstances on which he relied—the
need for employment-related travel, for instance—only existed after he gained such employment.
His factual circumstances differ from those in Nykoriak, where the petitioner’s motion seeking
early termination to visit an ill uncle, travel for a religious event, and respond to civil process in
Ukraine concerning his inheritance did not indicate that these circumstances were new or
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nonexistent at the time of his original sentencing. See Nykoriak, 803 F. App'x at 920. Indeed,
early termination of supervised release should occur only when the sentencing judge is satisfied
that “new or unforeseen circumstances” warrant it. United States v. Faber, 950 F.3d 356, 359 (6th
Cir. 2020) (“Section 3583(e)(2) allows district courts to adjust supervised release conditions to
account for new or unforeseen circumstances. It is not, however, a duplicate path for
postconviction review.”).
Zai’s motions are also distinguishable from § 3583(e) motions that simply repeat
sentencing arguments that could be made on direct appeal or by collateral attack, which would be
barred by a plea agreement waiving the right to make such challenges. See United States
v. Lostutter, No. 18-5321, 2018 U.S. App. LEXIS 33323, at *4-5 (6th Cir. Nov. 27, 2018) (holding
that the petitioner’s original motion and his appeal from the district court’s ruling were “effectively
a collateral attack on his original sentence,” which he had waived). Zai’s 3583(e)(2) motion did
not raise challenges that could be raised on a direct appeal or as part of a collateral attack, so this
issue does not arise.
Because the terms of the appellate waiver provision of Zai’s plea agreement are ambiguous,
we construe them against the government and in favor of his right to appeal. We conclude that
Zai’s plea agreement did not waive his ability to make this appeal.
B.
Zai moves for early termination of his supervised release under 18 U.S.C. § 3583(e)(1).
This provision first requires that the defendant have already served one full year on supervised
release. 18 U.S.C. § 3583(e)(1). When that statutory requirement is met, a district court may grant
early termination of supervised release if it concludes that such relief “is warranted both by the
individual’s conduct and also by the interest of justice.” Suber, 75 F. App’x. at 444 (citing United
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States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999)). Under this provision, a district court
entertaining a motion for early termination must also consider the following sentencing factors set
forth in 18 U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence imposed to reflect the serious of the
offense, to promote respect for the law, and to provide just punishment for the
offense; to afford adequate deterrence to criminal conduct; to protect the public
from further crimes of the defendant; and to provide him with needed educational
or vocational training, medical care, or other correctional treatment in the most
effective manner; . . . (3) the kinds of sentences available; (4) the kinds of sentence
and the sentencing range established for [the defendant's crimes] . . .; (5) any
pertinent policy statements issued by the Sentencing Commission . . . ; (6) the need
to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct; and (7) the need to provide
restitution to any victims of the offense.
18 U.S.C. § 3553(a)(1)–(7); see also Suber, 75 F. App’x at 443.
Zai argues that the district court abused its discretion by failing to consider and address
these factors when it denied his motions without explanation. In response, the government asserts
that the district court’s choice to issue its decision in the form of a response to the supervision
report was proper because it “shows that it reviewed, relied upon, and agreed with that report in
denying Zai’s motion,” and the supervision report contains sufficient reasons for denial. CA6 R.
13, Appellee Br., at 26. While case law instructs that a district court must consider the § 3553(a)
factors in the context of a § 3583(e) motion, we must determine whether it must also demonstrate
its consideration of these factors.
Our case law supports that the district court need not recite “magic words” but must still
demonstrate that the relevant factors are considered when deciding motions to terminate or modify
supervised release. In United States v. Suber, this court held that a district court did not abuse its
discretion by failing to explicitly consider these factors because its decision to deny the motion “in
light of the gravity of the underlying offenses” implicitly demonstrated the court’s reliance on two
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specified § 3553(a) factors: the “nature and circumstances of the offense” and the need “to afford
adequate deterrence to criminal conduct.” 75 F. App’x at 444 (citing 18 U.S.C. § 3553(a)(1),
(a)(2)(B)). Requiring some indication of the consideration of these factors is this circuit’s
approach to ruling on 18 U.S.C. § 3582(c)(2) motions, where the record must indicate that the
court considered the relevant sentencing factors when determining whether to reduce a defendant’s
sentence. See United States v. Watkins, 625 F.3d 277, 281 (6th Cir. 2010) (“[W]e do not require
the district court to articulate its analysis of each sentencing factor as long as the record
demonstrates that the court considered the relevant factors.”); see also Johnson, 877 F.3d at 997-
98 (analogizing § 3582(c) and § 3583(e) approaches). Thus, a district court’s reasoning for the
denial of such a motion for early termination or for modification of a term of supervised release
must demonstrate consideration of the relevant factors even if the court does not describe its
analysis of each factor. See Watkins, 625 F.3d at 281; see also United States v. Emmett,
749 F.3d 817, 820 (9th Cir. 2014) (“A district court's duty to explain its sentencing decisions must
also extend to requests for early termination of supervised release”).
Zai began his term of supervised release on July 19, 2019 and moved for early termination
of supervised release on November 4, 2021. He therefore satisfies the one-year statutory eligibility
requirement for early termination under 18 U.S.C. § 3583(e)(1). We turn to whether the court
properly addressed the specific § 3553(a) factors when denying him relief. Because the record
does not indicate that these factors were considered, the district court abused its discretion.
Instead of issuing a regular “order,” the district court denied Zai’s motion for early
termination by refiling the Probation Office’s Supervision Report, signing the last page, and
crossing a box next to the statement “The Request is Denied.” DE 273, Order, PageID 4173. The
government argues that the district court’s reliance on the Supervision Report sufficiently
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established the court’s consideration of the § 3553(a) sentencing factors because the Supervision
Report’s reliance on Zai’s outstanding restitution balance and the court’s “extensive prior
knowledge of Zai and the case” was sufficient to deny the motion. CA6 R. 13, Appellee Br., at
25-26.
Zai maintains that the district court never explained its denial and that signing and refiling
the Supervision Report “does not fill the gap.” CA6 R. 14, Reply, at 13. He first argues that the
Probation Report’s exclusive reliance on Zai’s outstanding restitution to recommend continuing
supervision was improper under judicial policy because Zai was complying with a payment plan.
Next, he challenges the government’s argument that the Supervision Report considered relevant
§ 3553(a) sentencing factors. Finally, he contends that, because he provided substantial reasons
supporting his motions and because the government did not oppose the relief sought, the court had
a heightened obligation to explain its denial. CA6 R. 14, Reply Br., at 11-12 (citing Mathis-
Gardner, 783 F.3d at 1289 (holding that the district court abused its discretion in part because it
failed to explain why it discounted the government’s request that the court terminate supervision)).
First, we agree that any reliance on outstanding restitution could not justify denying relief
here. Judicial policy instructs that “[t]he existence of an outstanding financial penalty does not
adversely affect early termination eligibility, as long as the person under supervision is in
compliance with the payment plan for the prior 12 months.” Guide to Judiciary Policy, Vol. 8,
§ 360.20(e) (July 2, 2018). Zai complied with his payment plan4 and reached an agreement with
4
The record reveals that there was some discrepancy with the Zai’s restitution payments from
December 2019 to June 26, 2020, but the Probation Office’s June 26, 2020 Supervision Report
notes that the U.S. Attorney’s Office and Zai’s attorney were consulting about the amount of
payment credits Zai was entitled to receive from his codefendant’s payments on their joint and
several restitution order. The Supervision Report recommended that no court action be taken
because a resolution of this issue was “expected.” DE 248, Supervision Report, at PageID 4009.
Because the Probation Office’s April 20, 2021 Supervision Report acknowledges that Zai was
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the FLP to satisfy his financial obligations “should [he] be granted early termination[.]” DE 273,
Order, PageID 4172. Because Zai followed his payment plan, the district court’s silent reliance
on a report recommending supervision on this basis does not demonstrate that the court
appropriately considered any relevant factors.
Moreover, it is not evident from the district court’s silent endorsement of the Probation
Report that the court actually considered any other sentencing factors. Unlike in Suber, where the
district court grounded its denial of the defendant’s motion “in light of the gravity of the underlying
offenses,” see 75 F. App’x at 444, which the panel considered an implicit consideration of two
statutory sentencing factors, here, the district court did not indicate which portion of the
Supervision Report was most persuasive. We can only presume it was the Supervision Report’s
only stated rationale for its recommendation: Zai’s outstanding restitution balance. Any other
information possibly supportive of other sentencing factors is not the focal point of the Report and
would not indicate that it justified the district court’s decision.
Without more clarity or explanation from the district court, it “is impossible to discern from
the record how or why denying the motion to terminate comported with consideration of the
relevant § 3553(a) factors.” See Mathis-Gardner, 783 F.3d at 1290.5 Based on the district court’s
“compliant with submitting monthly payments towards his restitution,” see DE 266, Supervision
Report, at PageID 4148, and the government does not itself raise this potential discrepancy, we
assume for purposes of this motion that this credit issue was resolved in Zai’s favor and did not
disrupt his period of compliance.
5
In addition to failing to explain how it considered the § 3553(a) factors, the district court does
not acknowledge the government’s lack of opposition to Zai’s motion, the contents of its motion,
or Zai’s substantial argument that he demonstrated the “exceptionally good behavior” that can
merit early termination. See United States v. Atkin, 38 F. App’x 196, 198 (6th Cir. 2002) (citing
United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)). These were all factors that supported
the D.C. Circuit’s decision in Mathis-Gardner to conclude that the district court abused its
discretion. 783 F.3d at 1289. However, we decline to find that these circumstances put a
heightened obligation on the district court to address the sentencing factors.
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refiling of the Supervision Report alone, we find no indication that the district court considered
the relevant § 3553(a) sentencing factors when denying Zai relief. We conclude that the district
court abused its discretion, and we therefore vacate its orders and remand for reconsideration by
the district court with adequate explanation.
C.
Under 28 U.S.C. § 2106, appellate courts are authorized to order the reassignment of a case
on remand. “Reassignment is an extraordinary power and should be rarely invoked.’” Rorrer
v. City of Stow, 743 F.3d 1025, 1049 (6th Cir. 2014) (quoting U.S. ex rel. Williams v. Renal Care
Grp., Inc., 696 F.3d 518, 532–33 (6th Cir. 2012)). To evaluate the necessity of reassignment,
courts consider:
(1) whether the original judge would reasonably be expected to have substantial
difficulty in putting out of his or her 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.
Id. (quoting Williams, 696 F.3d at 532-33). A judge’s opinions that “display a deep-seated
favoritism or antagonism that would make fair judgment impossible” may constitute a basis for a
motion based on bias, but “judicial rulings alone almost never constitute a valid basis” for such a
motion. Liteky v. United States, 510 U.S. 540, 555 (1994).
Zai argues that all three factors under Rorrer favor reassignment. First, he argues that the
original judge would have substantial difficulty in ignoring his previous orders because he denied
Zai’s motions without explanation within days of receiving them, despite delaying his decision on
Zai’s motion to deem restitution satisfied by one year. Second, Zai argues that reassignment would
preserve the appearance of justice in the face of the judge’s “hasty and unexplained rulings” which
have created perceived bias against Zai. CA6 R. 10, Appellant Br., at 30. There is heightened
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evidence of partiality, argues Zai, because Judge Adams sentenced him to the high end of the
Guidelines range, set his restitution amount at nearly $7 million more than the amount agreed upon
by Zai and the government, and imposed the maximum term of supervised release. Finally, Zai
argues that reassignment would not be too difficult—and judicial resources not wasted—because
a new judge need only rule on Zai’s unopposed motions regarding supervised release.
In response, the government argues that none of the district court’s rulings support Zai’s
claim of perceived bias. It states that the timing of the court’s order on different motions is of no
effect: the complexity of Zai’s motion to deem restitution satisfied required more resources than
did Zai’s motions for termination/modification of supervised release, and the district court’s
reasoning for the latter two was apparent from the Supervision Report. The government also
defends the court’s imposition of Zai’s original sentence, asserting that the court applied a
presumptively reasonable within-Guidelines sentence and was within its discretion to impose
restitution exceeding the agreed-upon loss amount because Zai and the government disagreed on
the restitution amount to be paid. CA6 R. 13, Appellee Br., at 31 (citing, inter alia, United States
v. Jeffries, 820 F. App’x 346, 351 (6th Cir. 2020)). Moreover, the government notes that Zai did
not identify any specific comments made by the judge that would “undermine the appearance of
justice” sufficient to warrant reassignment. Id. at 32 (quoting Williams, 696 F.3d at 533). Finally,
the government argues that reassignment of Zai’s case would disproportionately waste judicial
resources, given the complexity of the case and the disagreement between Zai and the government
as to the necessity of reassignment.
We conclude that reassignment of Zai’s case is not warranted. Here, it is unreasonable to
expect that the original judge would have difficulty ignoring his previous findings on supervised
release. Unlike Howe v. City of Akron, 801 F.3d 718, 756 (6th Cir. 2015), in which the original
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judge agreed that he would have “substantial difficulty” ignoring his previously expressed views,
Judge Adams has not acknowledged any difficulty doing so here, and the record contains no
previously expressed views or findings regarding the motions on supervised that would be hard to
ignore. Second, his previous rulings do not “display a deep-seated favoritism or antagonism.” See
Liteky, 510 U.S. at 555. Indeed, the reasonableness of Zai’s within-Guidelines sentence, including
his period of supervised release, can be presumed, see Jeffries, 820 F. App’x at 351, and his
restitution amount was already affirmed by this court on appeal. See United States v. Zai, 564 F.
App’x 215, 215-16 (6th Cir. 2014) (per curiam). Although a newly-assigned judge would likely
have little difficulty becoming informed on the remanded motions, reassignment of this case is not
required on this record. Zai’s request for reassignment on remand therefore fails.
IV.
For the foregoing reasons, we vacate the district court’s orders and remand for
reconsideration with adequate explanation of the court’s decision.
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