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Wrong judge? Case coming back

US v. Harris, No. 11-10053 (Noonan with B. Fletcher and Paez).

[Disclosure: This is an Az FPD case]. The defendant was sentenced by a judge other than the one who presided over the trial. The 9th held this violated Fed R Crim P 25(b) which states that a different judge can take over sentencing after a verdict or finding of guilt only if the original judge is unavailable. This was not the case here. The defendant was charged with three counts of assaulting a correctional officer. The defendant suffered from organic brain damage and was prone to violent behavior. Before trial, the court rejected a plea agreement with a stipulated sentence of 60 months, but indicated that a sentence below the guidelines might be warranted given the circumstances. After trial, and on the day of sentencing, the case was reassigned to a visiting judge. There was no explanation given. The visiting judge explained she was aware of the PSR and objections, but had no other information. The judge denied a request to reset the sentencing before the original judge (thereby preserving the issue), and preceded to sentence the defendant to 188 months. The 9th held this reassignment to be an abuse of discretion. Rule

25 presumes the presiding judge takes the sentencing, unless the judge is unavailable due to death, illness, absence and so forth The presiding judge seems to have been available but had just transferred the case to a

visiting judge, as was the court practice. A busy docket or a court in turmoil from a tragedy (the Tucson shootings) did not justify such a transfer. The case is remanded for resentencing.