UNITED STATES of America, Plaintiff-Appellee, v. Patricia Betterman PAUL, Defendant-Appellant, 561 F.3d 970

Per Curiam Opinion; Dissent by Judge HALL. PER CURIAM: In United States v. Paul, 239 Fed. App’x 353(9th Cir.2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable. Id. at 354. We viewed her case as one that did not fall within the “heartland” of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v.

United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (a court may decide “that the Guidelines sentence should not apply, perhaps because ... the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply”); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006) (“any post-Booker decision” as to whether a case falls within the heartland “is subject to a unitary review for reasonableness”), and allowed by Gall v.

United States, — U.S. -, 128 S.Ct. 586, 595, 169 L.Ed.2d 445 (2007) (rejecting “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range”). We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high. Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand.

This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence. We once more vacate Paul’s sentence, and remand to a different judge for resentencing. Factual and Procedural Background Paul was convicted by jury verdict for misappropriation of federal program funds under 18 U.S.C. § 666(a)(1)(A), and originally sentenced by the district court on this conviction to 16 months in prison. Paul appealed to this Court, raising multiple issues and appealing both the conviction and the sentence.

Paul prevailed on the latter but not on the former. We held, in an unpublished memorandum disposition, that her sentence was substantively unreasonable. We determined that the district court did not adequately take into consideration numerous factors that demonstrated that the 16-month sentence was unreasonably high: (

a) that Paul was a first-time offender with no criminal record whatsoever; (

b) that she promptly returned all of the funds to the school district; (

c) that she displayed remorse in two statements given to the Department of Labor prior to the filing of criminal charges; and (

d) that she believed that the misappropriated funds represented compensation for work that she had performed for the district. We held that “[t]he district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range,” and thus, the sentence was unreasonable. Paul, 239 Fed. App’x at 354-55. The panel vacated and remanded for re-sentencing, and the United States did not file a petition for rehearing.

On remand, the United States argued to the district court that the “Circuit’s factual conclusions were, in significant part, flawed and unsupported by the record” and that the “original sentence was not unreasonable.” The district court agreed, and while acknowledging this Court’s declaration that Paul’s original sentence was unreasonable, it determined that it was “totally satisfied that a sentence at the upper end of [the] guideline range would not only be reasonable, but that it would meet all of the current law criteria.” The district court then sentenced Paul to a 15-month prison term, removing one month from its original sentence that was declared unreasonable by this Court.

Paul now appeals, claiming that the district court violated the rule of mandate by failing to credit the mitigating evidence that it was specifically directed to take into consideration. Jurisdiction and Standard of Review The district court had subject matter jurisdiction to resentence Appellant under 18 U.S.C. § 3742(g). We review de novo a district court’s compliance with a mandate. United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir.2000). Discussion We vacate the district court’s reim-position of a sentence at the top of the Guidelines range because it flouts our pri- or mandate.

The language in our prior disposition is clear: Paul’s 16-month sentence is unreasonable. Several factors that are absent from the district court’s sentencing analysis demonstrate that this case does not fall within the “heartland” of cases to which the guidelines are most applicable....

All of the following facts demonstrate that a 16-month sentence was unreasonably high: Paul was a first-time offender with absolutely no criminal record whatsoever; she promptly returned all of the funds to the school district; she displayed remorse in two statements given to the Department of Labor prior' to the filing of criminal charges; and the misappropriated funds represented compensation for work that she had performed for the district. The district court did not adequately consider this strong mitigating evidence in sentencing Paul to the very top of the guidelines range.

Accordingly, we vacate Paul’s 16-month sentence and remand with instructions for the district court to resentence Paul after giving appropriate consideration to the above-mentioned factors. Paul, 239 Fed. App’x at 354-55. Nonetheless, on remand, the district court imposed a nearly identical sentence on Paul, removing only one month from the original top of the Guidelines sentence. In doing so, the district court was in violation of both the spirit and express instructions of our mandate. See Cassett v.

Stewart, 406 F.3d 614, 621 (9th Cir.2005) (holding that a lower court may deviate from mandate only if it is “not counter to the spirit of the circuit court’s decision”). Further, the district court did not impose the new sentence because of any new information submitted after the imposition of the sentence that was the subject of the prior appeal, nor because intervening authority made reconsideration appropriate. See Lindy Pen Co. v.

Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir.1993) (“The law of the case controls unless evidence on remand is substantially different from that presented in previous proceedings.”). The district court primarily relied upon the reasoning and justifications that we declared insufficient in our prior disposition. Specifically, the district court focused heavily on Appellant’s abuse of trust, as it did in the first sentencing, and omitted any meaningful consideration of the other factors which our mandate directed it to give appropriate consideration.

Further, contrary to the dissent’s assessment, no intervening case law made reconsideration appropriate in this case. In our prior disposition, we held that Paul’s sentence was unreasonable. Review for “unreasonableness” amounts to review for abuse of discretion. See Gall, 128 S.Ct. at 594(“Our explanation of ‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.”); Kimbrough v.

United States, — U.S. —, 128 S.Ct. 558, 576, 169 L.Ed.2d 481 (2007) (“The ultimate question ... is ‘whether the sentence was reasonable-i.e., whether the District Judge abused his discretion.’ ”). While it is true that more recent cases Gall v. United States, — U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445, and United States v. Carty, 520 F.3d 984 (9th Cir.2008) (en banc) reiterate the holding of United States v.

Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that a sentence is reviewed for reasonableness under an abuse of discretion standard, this standard was clearly established when we issued our prior holding — notably so in Rita v. United States, a case on which we explicitly relied, see 127 S.Ct. at 2465 (“ ‘[Reasonableness’ review merely asks whether the trial court abused its discretion.”).

While each of these subsequent cases has added nuance to our review of district court sentencing, the basic tenet of our prior holding in Paul I — that this is not a case that falls within the “heartland” of cases to which the Guidelines are applicable — remains good law. District courts are clearly vested with considerable discretion at sentencing. See United States v. Whitehead, 532 F.3d 991, 993 (9th Cir.2008). However, this discretion does not authorize the district court to trespass beyond boundaries established by this Court in a previous appeal.

Here, following the mandate laid out in Paul I would not have required the district court to render an illegal sentence. Cf. United States v. Bad Marriage II, 439 F.3d 534, 538 (noting that Booker was intervening case law that allowed for reconsideration of a mandate, as imposing a sentence pursuant to a mandatory sentencing regime would be illegal). Nothing in Gall, Kimbrough, or Carty so undermines the legal analysis in Paul I so as to allow the district court to deviate from our mandate.

There is no merit to the suggestion that there have been intervening changes in the law of sentencing that permit us to abandon the law of the case established in our prior disposition. On remand, the district court did precisely what the Paul I disposition rejected; specifically, it relied excessively upon defendant’s abuse of trust while not giving sufficient consideration to other factors. Absent either new information or intervening case law, the district court was required to follow the principles announced in our prior disposition.

As neither of these exceptions apply in this case, our mandate must be followed. Accordingly, we vacate and remand for resentencing, with instructions that in imposing the new sentence the district court take into consideration both the mitigating factors discussed in our previous disposition and our conclusion “that this case does not fall within the ‘heartland’ of cases to which the guidelines are most applicable.” Paul, 239 Fed. App’x at 354. We also grant the request to remand this matter to a different district judge. Remand to a new judge is reserved for “unusual circumstances.” United States v.

Arnett, 628 F.2d 1162, 1165 (9th Cir.1979). To determine whether “unusual circumstances” exist, the court considers: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (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. Smith v.

Mulvaney, 827 F.2d 558, 562-63 (9th Cir.1987). In this situation, we believe that the appearance of justice will be best preserved by remanding to a different judge. While the district judge on remand explained some of the reasoning behind his resentencing of Paul, he clearly did not put out of his mind his previously expressed view that the Appellant’s abuse of trust trumped all other mitigating factors combined, as shown by the fact that he again sentenced Paul to a prison sentence at the top of the Guidelines range. We have little faith that Judge Haddon would be able to do so on remand this time either.

We conclude that reassignment will best preserve the appearance of justice in this case. We do not believe that resentencing by another judge would entail waste and duplication out of proportion to the gain achieved in preserving an appearance of fairness, as a new sentencing hearing will be required whether the case is reassigned or remains with Judge Haddon. The sentence is vacated, and the case is remanded to the district court for resentencing by a new judge. SENTENCE VACATED; REMANDED FOR RESENTENCING BY A NEW JUDGE. .

If the United States had believed, as it claimed in its argument to the district court at resentencing, that Paul I's factual conclusions were flawed and unsupported by the record, it should have argued as much in a petition for rehearing. The district court was not at liberty to re-determine what this Court had previously determined. . No one contends that the original sentence was procedurally invalid. Cf. Gall, 128 S.Ct. at 596-97; United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc). Thus, the only question is whether cases issued after Rita v.

United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203, have changed the law with respect to reasonableness review so as to justify the district court’s departure from this court's mandate. The dissent argues that "reasonableness review in our circuit .... focuse[s] on whether the district court adequately explained the basis of its sentence ... and whether the court considered the defendant’s arguments.” Dissenting Op. at 983-84 n. 8. This is simply incorrect.

As this Court recently held in an en banc decision, "[i]t would be procedural error for a district court ... to fail adequately to explain the sentence selected.” Cany, 520 F.3d at 993 (emphasis added). It is the procedural provisions of 18 U.S.C. § 3553(

c) that require engagement with the defendant’s arguments, see Rita 127 S.Ct. at 2468-2469, not the substantive provisions of 18 U.S.C. § 3553(a). . Further, Carty explicitly declined to adopt an appellate presumption of reasonableness for within Guidelines sentences, such as Paul's. Carty, 520 F.3d at 994.

Subsequent cases have held that " '[T]he Guidelines factor [may not] be given more or less weight than any other.' So while the Guidelines are the ‘starting point and initial benchmark’ and must 'be kept in mind throughout the [sentencing] process,’ the Guidelines range constitutes only a touch-stone in the district court's sentencing considerations.” United States v. Autery, 555 F.3d 864, 872 (9th Cir.2009) (citations omitted). The dissent’s extended discussion of the Guidelines provisions misunderstands their [unction post Booker.

Contrary to the dissent’s view they simply constitute one factor, albeit the factor from which a sentencing court's analysis must start in determining a sentence that must be reasonable under the provisions of 18 U.S.C. § 3553(a). Compare Mohamed, 459 F.3d at 987, and United States v. Tankersley, 537 F.3d 1100, 1113-14 & n. 11 (9th Cir.2008), with Dissenting Op. at 977-78.