United States v. Lence

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30236
Plaintiff-Appellee, D.C. No.
v. CR-00-00035-SEH
JOHN A. LENCE,  ORDER
Defendant-Appellant. AMENDING
OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
January 13, 2006—Portland, Oregon
Filed July 27, 2006
Amended October 25, 2006
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
17813
17816 UNITED STATES v. LENCE
COUNSEL
James C. Bartlett, Kalispell, Montana, and Daniel Donovan,
Thompson, Potts & Donovan, P.C., Great Falls, Montana,
argued the cause for the appellant and were on the briefs.
Ellen R. Meltzer, United States Department of Justice, Fraud
Section, Criminal Division, Washington, D.C., argued the
cause for the appellee. William W. Mercer, United States
Attorney, District of Montana, Patrick M. Donley, and Nicola
J. Mrazek, United States Department of Justice, Washington,
D.C., were on the brief.
ORDER
The opinion filed July 27, 2006, is hereby ordered amended
as follows:
Slip Op. at 8422: Delete the old Section II.B, which com-
prises ¶¶ 3-4 and note 2
(from “That being said” to “original sentencing judge.2”)
Slip Op. at 8422: Insert a new Section II.B, which reads as
follows:
“That being said, we have not yet decided who should pre-
side 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
UNITED STATES v. LENCE 17817
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 Amend-
ment error and the sentencing judge—operating under pre-
Booker mandatory Guidelines—expresses doubts about the
Guidelines sentence being the correct sentence, that judge
ordinarily should conduct the resentencing. This course
allows the judge to assess subjectively whether he felt com-
pelled to impose the Guidelines sentence. A defendant who
preserves a claim of error should receive no less of a chance
to benefit from this subjective assessment than a defendant
who fails to preserve a claim of error and obtains a limited
Ameline remand.
This rule does not extend to situations in which resentenc-
ing by the original sentencing judge would be unjust (as in the
case of a pending complaint of misconduct against that judge)
or impractical (as in the case of judicial disability, retirement,
recusal, or death).2 In such extenuating circumstances, reas-
signment is permissible and the reason should be noted in the
record.
Thus, we conclude that Lence should be resentenced by
Chief Judge Molloy, unless an extenuating circumstance
requires reassignment.3”
2
This court noted in Ameline that “in some cases the original sentencing
judge may no longer be available, due to death, disability or retirement”
but concluded that the “sentencing judge’s unavailability will not neces-
sarily result in an inability to proceed.” Ameline, 409 F.3d at 1079 n.3.
Likewise, although we believe that resentencing by the original judge is
proper in the case of preserved error, another judge may resentence if nec-
essary.
3
In light of our holding, we need not consider Lence’s claim that Judge
Haddon’s sentence was the product of vindictiveness. Nor need we
address the proper standard of proof for judge-found facts used to apply
sentencing enhancements, a question we have already resolved. See, e.g.,
United States v. Williams, 441 F.3d 716, 725 (9th Cir. 2006) (applying a
preponderance standard to a “vulnerable victim” enhancement).
17818 UNITED STATES v. LENCE
The mandate shall issue forthwith.
OPINION
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 sen-
tencing and calculated a base offense level of 6 with enhance-
ments 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 sentenc-
ing 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 guide-
lines 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-
UNITED STATES v. LENCE 17819
tions with respect to what those guidelines are that
I have previously stated.
Lence appealed, and the government cross-appealed. In an
unpublished disposition, we affirmed Lence’s conviction but
vacated his sentence and remanded for resentencing, holding
the downward departure to be an abuse of discretion. United
States v. Lence, 92 Fed. App’x 505 (9th Cir. 2004) (unpub-
lished decision).
Upon remand, Chief Judge Molloy resentenced Lence in
July 2004. Lence again requested a downward departure and
argued that use of any sentencing enhancements would violate
the Sixth Amendment. Judge Molloy found that the amount-
of-loss enhancement could be applied because the amount
was specifically charged in Lence’s indictment, but he did not
rule on the abuse-of-trust or more-than-minimal-planning
enhancements. The government, expressing concern in light
of the Supreme Court’s decision in Blakely v. Washington,
542 U.S. 296 (2004), asked the court not to apply those
enhancements.
Thereupon, Chief Judge Molloy sentenced Lence to 21
months, two years of supervised release, and a $7,500 fine
and rejected the request for a downward departure. Before
imposing a sentence at the bottom of the now 21-27 month
sentencing range, Judge Molloy remarked:
Well, I think he’s about 21 months higher than he
ought to be, but I’m not going to accept that. I think
that the sentence here, 21 months is an appropriate
sentence, given the jury’s findings, and based upon
the evidence.
Lence appealed his newly-imposed sentence.
While that appeal was pending, the Supreme Court decided
United States v. Booker, 543 U.S. 220 (2005). Based on that
17820 UNITED STATES v. LENCE
decision, Lence filed an unopposed motion to have his sen-
tence vacated and his case remanded for resentencing under
the now-advisory Guidelines, which we granted.
On this second remand, Chief Judge Molloy transferred the
case to Judge Sam E. Haddon. Judge Haddon held a new sen-
tencing hearing after reviewing the case materials. He applied
the amount-of-loss, more-than-minimal-planning, and abuse-
of-trust enhancements, calculating an adjusted offense level of
20. Finding the resulting Guidelines’ range of 33-41 months
to be reasonable, Judge Haddon sentenced Lence to 33
months, three years of supervised release, and a $7,500 fine.
Lence timely appeals from the sentence imposed by Judge
Haddon. Because he has served approximately 17 months of
his sentence, following oral argument, we granted Lence’s
motion for release pending resolution of this appeal.
II
Lence argues that he should have been resentenced by
Chief Judge Molloy, that any sentencing enhancements must
be based on facts proved beyond a reasonable doubt, that
Judge Haddon’s sentence was the result of vindictiveness, and
that the government should have been estopped from seeking
the more-than-minimal-planning and abuse-of-trust enhance-
ments.
A
[1] We first address Lence’s claim that he was entitled to
be resentenced by his original sentencing judge, Chief Judge
Molloy. Lence claims that his resentencing should have been
conducted according to the procedures set forth in United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). In
Ameline, we considered the proper relief to be afforded defen-
dants who did not preserve their claims of Booker error at
sentencing. Id. at 1074. We concluded that such defendants
UNITED STATES v. LENCE 17821
are entitled to a limited remand to determine “whether the
sentence would have been different had the court known that
the Guidelines were advisory.” Id. at 1079. A limited remand
is the only practical way for a reviewing court to determine
whether plain error had been committed; the limited remand
is intended to resolve only this question—whether any sen-
tencing error affected the defendant’s substantial rights. Id. at
1078-79. When a sentencing judge determines that he would
have imposed a different sentence under advisory Guidelines,
the defendant receives a full resentencing hearing. Id. at 1078-
79.
[2] Critically, Ameline does not apply to preserved claims
of Booker error, and Lence preserved his claim by objecting
to Chief Judge Molloy’s use of the amount of loss enhance-
ment at his second resentencing. In his opening brief, Lence
himself notes that his case “remains on direct appeal with his
constitutional errors preserved” and that he “preserved his
constitutional issues.” Therefore, Lence was entitled to a full
resentencing under Booker, 543 U.S. at 267-68, not a limited
Ameline remand.1 See United States v. Ruiz-Alonso, 397 F.3d
815, 820 (9th Cir. 2005).
1
In any event, even under Ameline a limited remand would be unneces-
sary where, as here, the sentencing judge explicitly stated that he would
have imposed a different sentence were it not for the mandatory Guide-
lines. In United States v. Labrada-Bustamante, 428 F.3d 1252, 1261-62
(9th Cir. 2005), we vacated a defendant’s sentence and remanded for
resentencing because the sentencing judge emphasized his lack of control
over the sentence he was required to impose, a sentence he called “very,
very severe” and “extraordinarily long [ ] for a first offender.” We specifi-
cally remarked that the case was “one of those rare cases where the district
court stated on the record that he felt compelled to impose a harsher sen-
tence because of the mandatory nature of the Guidelines.” Id. at 1262.
The present case is another such “rare” case. Chief Judge Molloy’s
statements parallel those in Labrada-Bustamante. He stated that the sen-
tence mandated by the Guidelines was “probably not the sentence I would
give you, if I didn’t have the guidelines; I would give a different sen-
tence.” At Lence’s second sentencing, he opined that Lence’s 21-month
sentence was “21 months higher than [it] ought to be.” Thus, even had he
not preserved his claim of error, Lence would still be entitled to a full
resentencing under Labrada-Bustamante.
17822 UNITED STATES v. LENCE
B
[3] 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
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.
[4] Thus, when a defendant preserves a claim of Sixth
Amendment error and the sentencing judge—operating under
pre-Booker mandatory Guidelines—expresses doubts about
the Guidelines sentence being the correct sentence, that judge
ordinarily should conduct the resentencing. This course
allows the judge to assess subjectively whether he felt com-
pelled to impose the Guidelines sentence. A defendant who
preserves a claim of error should receive no less of a chance
to benefit from this subjective assessment than a defendant
who fails to preserve a claim of error and obtains a limited
Ameline remand.
This rule does not extend to situations in which resentenc-
ing by the original sentencing judge would be unjust (as in the
case of a pending complaint of misconduct against that judge)
or impractical (as in the case of judicial disability, retirement,
recusal, or death).2 In such extenuating circumstances, reas-
signment is permissible and the reason should be noted in the
record.
2
This court noted in Ameline that “in some cases the original sentencing
judge may no longer be available, due to death, disability or retirement”
but concluded that the “sentencing judge’s unavailability will not neces-
sarily result in an inability to proceed.” Ameline, 409 F.3d at 1079 n.3.
Likewise, although we believe that resentencing by the original judge is
proper in the case of preserved error, another judge may resentence if nec-
essary.
UNITED STATES v. LENCE 17823
[5] Thus, we conclude that Lence should be resentenced by
Chief Judge Molloy, unless an extenuating circumstance
requires reassignment.3
III
Because we return the case to the district court for yet
another resentencing, we must address Lence’s contention
that the government is estopped from seeking application of
the more-than-minimal-planning and abuse-of-trust enhance-
ments that it asked Chief Judge Molloy not to apply at
Lence’s second sentencing hearing.
[6] “Judicial estoppel is an equitable doctrine that precludes
a party from gaining an advantage by asserting one position,
and then later seeking an advantage by taking a clearly incon-
sistent position.” Hamilton v. State Farm Fire & Cas. Co.,
270 F.3d 778, 782 (9th Cir. 2001). Most commonly the doc-
trine is “applied to bar a party from making a factual assertion
in a legal proceeding which directly contradicts an earlier
assertion made in the same proceeding or a prior one.” Russell
v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (internal quota-
tion marks omitted). An inconsistent factual or legal position
is a threshold requirement of the doctrine. Yanez v. United
States, 989 F.2d 323, 326 (9th Cir. 1993).
[7] The record indicates that the government has not taken
such a position. The government never argued that the
enhancements were not warranted or not supported by the
facts, only that they had not been proved to a jury. It argued
for—and Chief Judge Molloy applied—the enhancements in
3
In light of our holding, we need not consider Lence’s claim that Judge
Haddon’s sentence was the product of vindictiveness. Nor need we
address the proper standard of proof for judge-found facts used to apply
sentencing enhancements, a question we have already resolved. See, e.g.,
United States v. Williams, 441 F.3d 716, 725 (9th Cir. 2006) (applying a
preponderance standard to a “vulnerable victim” enhancement).
17824 UNITED STATES v. LENCE
question at Lence’s first sentencing. At his second sentencing,
the government asked the court not to apply them, based
solely on the considerable confusion wrought by Blakely’s
alteration of sentencing law. By Lence’s third sentencing,
however, the Supreme Court in Booker had resolved the con-
cerns raised by Blakely, clarifying that under the now-
advisory Guidelines, judicial consideration of additional facts
does not violate the Sixth Amendment. See Ameline, 409 F.3d
at 1077-78. Thus, at no time did the government take a posi-
tion that was “clearly inconsistent with its earlier position.”
Hamilton, 270 F.3d at 782 (internal quotation marks omitted).
[8] Chief Judge Molloy’s accommodation of the govern-
ment’s request at Lence’s second sentencing does not indicate
that he was misled. Id. Chief Judge Molloy was fully cogni-
zant of the uncertainties created by Blakely and the legitimate
reasons for the government’s position. The government does
not derive an unfair advantage or impose an unfair detriment
on Lence if it is allowed to seek these enhancements at his
resentencing, particularly when the sentencing judge has con-
siderable discretion post-Booker in choosing an appropriate
sentence. Id. at 783. Thus, we cannot say that the balance of
equities supports application of judicial estoppel in these cir-
cumstances. The government is therefore free to seek applica-
tion of the more-than-minimal-planning and abuse-of-trust
enhancements at Lence’s resentencing.
IV
In summary, we vacate Lence’s sentence and remand to the
district court for resentencing by the original sentencing
judge. At such fourth sentencing hearing, the government is
not estopped from seeking application of the more-than-
minimal-planning and abuse-of-trust enhancements.
SENTENCE VACATED and REMANDED FOR
RESENTENCING.