FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10053
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-00704-
WILLIAM HARRIS, CKJ-HCE-02
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
February 16, 2012—San Francisco, California
Filed May 25, 2012
Before: Betty B. Fletcher, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Noonan
5861
UNITED STATES v. HARRIS 5863
COUNSEL
Robert L. Miskell, Assistant United States Attorney, Tucson,
Arizona, for the plaintiff-appellee.
Walter Eric Raw, Assistant Federal Public Defendant, Tuc-
son, Arizona, for the defendant-appellant.
OPINION
NOONAN, Circuit Judge:
William Harris appeals his sentence of 188 months follow-
ing his conviction of three counts of assaulting a federal cor-
5864 UNITED STATES v. HARRIS
rectional officer. The sentence was imposed by a judge other
than the trial judge, whose unavailability for sentencing was
unexplained. A judge visiting the District of Arizona imposed
the sentence with insufficient familiarity with the case.
Because of that unfamiliarity and the unjustified replacement
of the trial judge, the sentencing violated Federal Rule of
Criminal Procedure 25(b) with prejudice. We vacate the sen-
tence and remand for sentencing by the trial judge.
FACTS
William Harris, 35 years old, is a member of the Salt River-
Maricopa Indian Tribe. He left school at age 14. He has a his-
tory of depression, mental disturbances, and substance abuse.
In 1994, age 18, he was convicted of aggravated assault and
sentenced to three years in Arizona state prison. On release
from prison, his schizophrenic behavior continued as did his
heavy drinking. In 2001, he suffered organic brain damage in
an automobile accident. He was repeatedly convicted in tribal
court of disorderly conduct with sentences of typically no
more than 30 days in jail. On the evening of February 2, 2004,
he joined in a physical assault on a Navajo drinking compan-
ion. He was convicted of assault causing serious bodily injury
and sentenced in 2007 to 108 months in federal prison.
On March 20, 2008, incarcerated for this offense, he had
not been taking the prescribed medicine for his psychiatric
troubles and he had been drinking homemade wine to the
point of intoxication. Another prisoner, Philbert Antone, was
without permission visiting his cell. Corrections Officer Brian
Fitzgerald attempted to remove Antone, who resisted
removal. Sanford Chiago, another prisoner, joined in the
attack on the guard. Harris joined the attack by throwing a
plastic chair at the guard. Corrections Officer Noel Pasillas
came to Fitzgerald’s defense. According to Pasillas, Harris
threw multiple chairs at him and stabbed Pasillas with a
homemade knife.
UNITED STATES v. HARRIS 5865
PROCEEDINGS
In May 2008, Antone, Chiago, and Harris were scheduled
for trial. The government offered all three a plea bargain with
a 60-month sentence. The defendants accepted. The Presen-
tence Investigation Report (“PSR”) recommended rejection of
the agreement. Antone and Chiago were already serving life
sentences for murder. The PSR recommended 110 months for
Antone, 97 months for Chiago, and 188 to 235 months for
Harris, characterized as a career offender. On October 23,
2009, at the government’s urging, the district court accepted
the plea agreements in Antone and Chiago’s cases and sen-
tenced them to 60 months.
On May 28, 2010, the district court rejected the 60-month
sentence offered to Harris. The trial judge stated that “protect-
ing the community” is “one of the primary functions that this
Court needs to have in fashioning an appropriate sentence.”
She also observed that the Guidelines mattered. She added
that her rejection of the plea did not mean that she would not
“accept another plea agreement, possibly, that has a different
sentence,” and that it “[did]n’t necessarily have to be a guide-
line sentence.” She acknowledged the arguments of Eric Rau,
counsel for Harris, and stated, “Again, I am willing to possi-
bly accept a plea agreement that does contemplate going
below this guideline range . . . .”
Trial followed. Harris was found by a jury to be guilty on
all three counts of assault on a federal officer.
A new PSR was filed. Harris filed two memoranda on sen-
tencing, May 12, 2010 and January 14, 2011. Sentencing was
postponed to February 1, 2011. On that date the trial judge
was not present at Harris’s sentencing. Her place was taken
by Linda Reade, Chief Judge of the Northern District of Iowa,
who was visiting the district court in Arizona.
Judge Reade stated that she was “generally familiar with
the record,” but that “other than what’s in the official records
5866 UNITED STATES v. HARRIS
of the Court, the Court has no independent information con-
cerning this case or this defendant.” She stated that she had
read the PSR and had the defendant’s objections to it. The
defense moved to postpone sentencing so that it could be done
by the trial judge. Judge Reade said: “Well, it’s my under-
standing that when there is a visiting judge, that the regular
district judges in this district pull cases that are appropriate for
disposition by the visiting judge.” She continued with the sen-
tencing.
Each of the two guards who had been assaulted now testi-
fied. Harris was invited to testify but declined. Counsel for
both sides addressed the court. Judge Reade referred to the
PSR and then sentenced Harris to 188 months, the bottom of
the Guidelines range.
Harris appeals, arguing that (1) the district court abused its
discretion by rejecting the plea agreement; (2) the visiting
judge abused her discretion by sentencing Harris in violation
of Federal Rule of Criminal Procedure 25(b) and despite a
lack of familiarity with the record; and (3) his sentence is sub-
stantively unreasonable.
ANALYSIS
1. The rejection of the plea agreement
[1] Harris first argues that the district court should not
have rejected his plea agreement. We review a district court’s
decision to reject a plea agreement for abuse of discretion. In
re Morgan, 506 F.3d 705, 708 (9th Cir. 2007). “[A] district
court properly exercises its discretion when it rejects a plea
agreement calling for a sentence the court believes is too
lenient or otherwise not in the public interest in light of the
factual circumstances specific to the case.” Id. at 712 (internal
quotation marks omitted). Here, the district court did not
abuse its broad discretion when it rejected Harris’s plea agree-
UNITED STATES v. HARRIS 5867
ment because the stipulated sentence failed to adequately pro-
tect the community.
2. The violation of Fed. R. Crim. P. 25(b)
Harris next argues that his sentencing by a visiting judge
was conducted in violation of Federal Rule of Criminal Proce-
dure 25(b). When a sentencing judge has not presided over
trial, this court reviews the decision to proceed with sentenc-
ing for an abuse of discretion. United States v. Jones, 982
F.2d 380, 385 (9th Cir. 1992).1
[2] “After a verdict or finding of guilty, any judge regu-
larly sitting in or assigned to a court may complete the court’s
duties if the judge who presided at trial cannot perform those
duties because of absence, death, sickness, or other disabili-
ty.” Fed. R. Crim. P. 25(b)(1). The Advisory Committee
Notes indicate that the rule is intended to cover situations in
which
a judge who has been assigned . . . to try the case is,
at the time for sentence, [ ] back at his regular place
of holding court which may be several hundred miles
from the place of trial. It is not intended, of course,
that substitutions shall be made where the judge who
tried the case is available within a reasonable dis-
tance from the place of trial.
Fed. R. Crim. P. 25 advisory committee’s note (1966 Amend-
ments).
1
The government argues that we should review this claim only for plain
error because Harris failed to frame his objection in the express terms of
Rule 25(b). We conclude that Harris’s request that his sentencing be reset
before the original trial judge was sufficient to preserve this claim for
appeal. See United States v. Pallares-Gallan, 359 F.3d 1088, 1095 (9th
Cir. 2004).
5868 UNITED STATES v. HARRIS
[3] The judge who presided at trial was neither dead nor
sick. There has been no showing that she was absent from the
district nor otherwise disabled so that she could not perform
the sentencing. Asked at oral argument in this court why he
thought she did not do the sentencing, government counsel
stated that he believed that the court was “in turmoil” follow-
ing the fatal shooting of Chief Judge John Roll. Such turmoil
would not constitute a reason under Rule 25(b), whose viola-
tion appears to be undisputed.
[4] Furthermore, the visiting judge was not sufficiently
familiar with the record. See, e.g., Jones, 982 F.2d at 385.
Judge Reade was familiar with the PSR and had Harris’s
objections to it. She was not, however, familiar with the trial
transcript. If familiarity with the PSR qualified a judge to sen-
tence, it would become routine for visitors to replace trial
judges at sentencing. Judge Reade’s comment on the practice
in Arizona, quoted here, suggests that it had already became
so in Arizona.
[5] Rule 25(b) articulates a standard that assumes it to be
important that sentencing be done by “the judge who presided
at trial.” Why is it important? Because only that judge has had
the opportunity to observe every aspect of the trial and to take
into account in sentencing what has been observed. Sentenc-
ing is an art, not to be performed as a mechanical process but
as a sensitive response to a particular person who has a partic-
ular personal history and has committed a particular crime.
Lack of sufficient familiarity with the details of that person’s
trial is prejudicial to him. We conclude that because the
absence of the original trial judge was not in accordance with
Rule 25(b), and the visiting judge was not sufficiently familiar
with the record, the visiting judge abused her discretion by
conducting Harris’s sentencing.
Because Harris’s sentence must be vacated, we do not
address his final argument that his sentence was substantively
unreasonable.
UNITED STATES v. HARRIS 5869
[6] For the reasons stated, the sentence is VACATED and
the case is REMANDED for sentencing by the trial judge.