15‐3498‐cr
United States v. Johnson
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2016
Docket No. 15‐3498‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
CALVIN JOHNSON, A.K.A. CAL,
Defendant‐Appellant.
ARGUED: DECEMBER 12, 2016
DECIDED: MARCH 10, 2017
Before: JACOBS, CABRANES, and PARKER, Circuit Judges.
Calvin Johnson appeals from a judgment of the United States District
Court for the Northern District of New York (McAvoy, J.), entered on October 20,
2015, convicting him, following the entry of a guilty plea, of conspiracy to
possess and distribute cocaine, cocaine base, heroin, and marijuana, in violation
of 21 U.S.C. §§ 841(a)(1) and 846, and of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), and sentencing him principally to a
mandatory term of life imprisonment. Johnson also appeals from an order
denying his motion to withdraw his guilty plea. We conclude that Johnson’s plea
was not entered voluntarily, knowingly, and intelligently. Accordingly, we
vacate the judgment of the district court and the guilty plea, direct that the case
be reassigned, and remand for further proceedings consistent with this opinion.
Vacated and remanded.
PAUL D. SILVER, Assistant United States
Attorney, for Richard S. Hartunian, United
States Attorney for the Northern District of
New York (with Miroslov Lovric, Assistant
United States Attorney, on the brief),
Albany, New York, for the United States of
America.
LAWRENCE GERZOG, New York, New York,
for Defendant‐Appellant.
2
DENNIS JACOBS, Circuit Judge:
Calvin Johnson appeals from a criminal judgment of the United States
District Court for the Northern District of New York (McAvoy, J.), entered
October 20, 2015, on a plea of guilty (without a plea agreement) to a drug
conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A few months after
his plea on July 3, 2015, but before his sentencing, Johnson wrote to the district
court seeking to withdraw his plea and replace his lawyer, asserting that he did
not understand that his guilty plea would necessarily entail a mandatory life
sentence. If he understood that the judge would have no discretion, Johnson
explained, he would have gone to trial. The district court denied the motion
without a hearing, and Johnson also appeals from that denial.
We conclude that Johnson’s plea was not entered voluntarily, knowingly,
and intelligently. In the plea hearing, the impression was given that there was a
range of sentencing options: the judge spoke of “the potential sentences”; the
prosecutor gave an account of multiple maximum and minimum sentences,
discussed supervised release, and warned of the forfeiture of rights (including
the right to hold public office); and the court and prosecutor discussed
3
Sentencing Guidelines ranges and judicial discretion to weigh the facts and
circumstances. Although the prosecutor at one point stated that a minimum
sentence of life would “trump” other considerations, that critical advice was
overwhelmed by incompatible advisories. The sentencing transcript suggests
that Johnson’s counsel (on whom Johnson would rely to sort it out) may not have
understood the inexorable nature of the sentence either. And Johnson’s assertion
that he would have gone to trial if he knew that a life sentence was foreordained
is rendered plausible by the arresting fact that he derived absolutely no benefit or
advantage from the plea.
Accordingly, we vacate the district court’s judgment and Johnson’s plea,
direct that the case be reassigned, and remand for further proceedings consistent
with this opinion.
BACKGROUND
I
In October 2014, a grand jury indicted Calvin Johnson on one count of
participation in a drug‐trafficking1 conspiracy in violation of 21 U.S.C.
The drug quantities alleged in the indictment were 280 grams or more of cocaine base;
1
5 kilograms or more of cocaine; 1,000 kilograms or more of marijuana; and 100 grams or
more of heroin.
4
§§ 841(a)(1) and 846 and one count of possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). The statutory determinants of his sentencing
exposure appear relatively complex, but his actual sentence if convicted could
hardly be simpler.
The firearm count, pursuant to 18 U.S.C. § 924(a)(2), carries a maximum
sentence of ten years of imprisonment and no mandatory minimum. The drug
count, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851, carries a maximum sentence
of life imprisonment and a mandatory minimum that depends upon the
application of prior‐felony enhancements: the baseline is a mandatory minimum
of ten years of imprisonment; a prior conviction for a felony drug offense makes
a defendant eligible for a mandatory minimum of twenty years; and two such
prior convictions make a defendant eligible for a mandatory life sentence.
Pursuant to § 851, the “imposition of an enhanced penalty is not automatic,” but
is triggered when “the Government files an information notifying the defendant
in advance of trial (or prior to the acceptance of a plea) that it will rely on that
defendant’s prior convictions to seek a penalty enhancement.” United States v.
LaBonte, 520 U.S. 751, 754 n.1 (1997).
5
The government did seek an enhancement: it filed an information
establishing that Johnson had been twice convicted of criminal sale of a
controlled substance in the third degree in violation of New York State Penal
Law § 220.39(1). Those judgments were entered nearly 20 years earlier, in
September and December of 1995, when Johnson was 19 years old. Johnson was
incarcerated from 1995 until 2003. He appears not to have had significant
involvement with the criminal justice system after his release until he was
indicted in the present case, when he was 38 years old.
This indictment charges Johnson with responsibility for drug trafficking
that allegedly occurred in or through a nightclub that Johnson operated in
Binghamton, New York. The weapon that gives rise to the firearm count was
apparently discovered behind a jukebox. By operation of the prior‐felony
information, conviction on the drug‐trafficking count entails a mandatory
sentence of life imprisonment. No other sentence is possible.
II
In March 2015, Johnson and his lawyer, Lee Kindlon, appeared by
videoconference from Albany before Senior U.S. District Judge Thomas McAvoy
in Binghamton. The purpose of the hearing was to enter a guilty plea. Judge
6
McAvoy advised Johnson that he had a right to appear in the same room and
asked whether it was “okay with [him]” that they proceed by videoconference,
and Johnson said that it was. App. 19. Johnson had no plea agreement, but that
circumstance was never mentioned at his plea hearing. It is not clear from the
record whether his lawyer attempted to negotiate an agreement, or whether the
government was willing.
In colloquy, the judge asked Johnson whether Kindlon had explained to
him “the potential sentences” (in the plural), “or consequences of pleading
guilty,” and Johnson said yes; the judge asked him if he had understood them,
and Johnson said that he had. Id. at 20.
Later, the judge asked the prosecutor, Miroslov Lovric, to “please advise
Mr. Johnson and the Court what the maximum or any minimum penalties would
be.” Id. at 30. Lovric said that “the possible maximum penalty is life
imprisonment” and that “the mandatory minimum pursuant to statute is life
imprisonment.” Id. He went on to add that “there’s a supervised release term
required of at least ten years”; that “[i]f there’s any violation of the terms of
supervised release, the Court would have the power to add an additional five
years of imprisonment for any violation thereof”; that the second count had a
7
“possible maximum sentence” of ten years with “no mandatory minimum
required”; and that, with respect to both counts, “in addition to these possible
maximum penalties,” Johnson would lose certain rights, including the right to
vote, to possess a firearm, to hold certain public offices, and to obtain certain
licenses. Id. at 30–31. He summed up, saying that he “believe[s] those are the
possible maximum penalties and the statutory minimum penalties.” Id. at 31.
Without discussing the prosecutor’s remarks or asking Johnson whether
he understood them, Judge McAvoy then addressed Johnson:
[T]he Court also has to inform you that under and pursuant to
certain Sentencing Guidelines that used to be mandatory but
are no longer mandatory but still must be considered by the
sentencing court, that my discretion in sentencing you is
thereby affected and the Court must enforce the law as it
stands today but sometimes the Court can sentence you above
the Guidelines, below the Guidelines or [e]ven outside of the
Guidelines depending upon the facts, the circumstances and
the law that’s brought to the Court’s attention at or about the
time of sentencing.
Id. at 32. He asked whether Johnson understood “what I just said about the
Sentencing Guidelines” and Johnson said yes.
Judge McAvoy asked the prosecutor for a preliminary Guidelines
calculation, and Lovric then delivered about two pages of transcript in the jargon
8
of the United States Sentencing Guidelines. He described one calculation with
the result that “the guidelines range is 30 to life,” another that is also “30 to life,”
another that “would be 262 to 327 months,” another that “would be 151 to 188
months,” another that “is 108 to 135 months” and one that is “188 to 235
months.” Id. at 33–34. He then added:
All of the guideline provisions I’ve just described are
nevertheless trumped by the fact that the statutory mandatory
minimum is a life term under Section 21 U.S.C. 841(b)(1)(A)
[sic] and as I indicated that is the statutory mandatory
minimum in this case when I indicated the possible penalties
under count one. So the Guidelines are trumped by that
statutory mandatory minimum.
Id. at 34. Without commenting on the prosecutor’s description of the Guidelines
calculations or asking Johnson whether he understood their applicability (or that,
as a practical matter, they simply had no applicability because of the mandatory
life sentence), the judge asked Johnson, “now that you’ve heard about the
statutory sentence and Guidelines, do you still wish to plead guilty?” Johnson
said, “Yes, your Honor.”
Judge McAvoy then turned his questioning to Johnson’s lawyer. Kindlon
described his background and his experience, including dozens of cases over
more than a decade. He also said that he and members of his firm had spent
9
“dozens and dozens of hours” on Johnson’s case, “in preparation, reviewing all
the documents, going over them with Mr. Johnson and even trial prep over the
past weekend and then meetings yesterday with [Johnson] in preparation for
today’s plea.” Id. at 35. The judge asked him whether he knew of any defenses
that would prevail at trial and Kindlon answered that “[a]gain, your Honor, after
going over this thing from soup to nuts over the weekend, we could think of
nothing. No viable defense to the charges.” Id. at 36. The judge asked if Kindlon
knew any reason why Johnson should not plead guilty, and Kindlon said no.
There is nothing to suggest why Johnson—in the midst of trial
preparation—would knowingly elect to plead when a plea could yield no
discount from the worst that could happen at trial.
Judge McAvoy accepted and entered the plea.
III
On June 24, 2015—just shy of four months after his plea hearing—Johnson
sent a handwritten letter to Judge McAvoy requesting that his plea be withdrawn
and that Kindlon be replaced:
My plea was not made knowingly or voluntar[il]y. I was
mislead and ineffectively assisted by my attorney into
believing that your Honor could sentence me to a sentence
10
lower than the statutory sentence provided in section
841(b)(1)(a) of the sentencing codes.
During my plea allocution you stated that you had the power
to go above, below, or even outside the guidelines depending
on the laws at the time of my sentencing. I misunderstood you
to mean you could sentence outside of the statutory sentences
as well.
Without being lead to believe this by my attorney I would
never have plead guilty to charges that sentence me to a
mandatory term of life in prison.
I have everything to gain going to trial versus just accepting a
life sentence. Mr. Khindlon has provided me with ineffective
assistance, not only by advising me to plead guilty to a
mandatory life sentence, but also by stating to me as well as
stating to your Honor on the plea allocution record that “He
cannot come up with a defense.”
Id. at 39–40. It does not appear that Kindlon was asked to respond. In any event,
he did not. The government filed an opposition.
A few days after the date of Johnson’s letter, but one day before it was
filed by the clerk, Kindlon filed a sentencing memorandum. That memorandum
does not mention the mandatory sentence. It argues that the career‐offender
enhancement should not apply and that the court should use a 1:1
crack‐to‐powder ratio. It thus assumes application of the Sentencing Guidelines,
even though they could have no effect as a result of the mandatory sentence.
11
(The government’s sentencing memorandum responds to those arguments but
also points out that the mandatory life sentence applies.)
On October 5, 2015, Judge McAvoy ruled without a hearing, denying the
motion to withdraw the guilty plea and to replace Kindlon. Most of the decision
is a detailed restatement of the plea hearing.2 It concludes that Johnson “under
oath, informed the Court that he understood the charges against him and the
consequences of pleading guilty, and that his attorney had explained both to
him,” and therefore that his “claims here are contradicted by his own sworn
statements at the plea allocution.” Id. at 52.
On October 21, 2015, Johnson and Kindlon appeared before Judge McAvoy
for sentencing. The judge asked Kindlon what he would like to say on behalf of
his client, and Kindlon briefly discussed the phenomenon of overly harsh
sentences and seemingly asked the judge to use discretion (though he could not
lawfully do so):
2 The judge also rejected Johnson’s pro se motion on the grounds that: (i) it offered no
facts concerning his actual innocence nor did it even allege he was innocent; and (ii)
four months passed between his plea and the pro se letter, a significant span of time that
typically weighs against granting the motion. Neither of these grounds is persuasive,
particularly in light of the deference typically afforded to pro se litigants.
12
[W]e stand here next to Mr. Johnson on [sic] watching the
sands shift in front of us in terms of the sentencing guidelines
and I only ask that the Court take this into consideration so
we’re not standing here in five years or ten from now, you
know, asking to have Mr. Johnson resentenced to something
other than what he may be sentenced to today, something
much less. I ask the Court to be prospective in how it
sentences Mr. Johnson. Look at all the things he’s done and
balance them against the things which he pled guilty to and
sentence him accordingly.
Id. at 79. Judge McAvoy said that he thought a “more appropriate” sentence
“would be something in the neighborhood of 180 months” but that he was
bound by the law. Id. at 80. Accordingly, Johnson was sentenced to life in prison.
With new counsel, Johnson appealed. He argues that his guilty plea should
be vacated because it was not knowing, intelligent, and voluntary; that his
motion to withdraw the plea should have been granted; and that it was an abuse
of discretion to deny his motion to replace counsel without a hearing.
DISCUSSION
I
A guilty plea operates as a waiver of constitutional rights, including the
rights to a jury trial and against self‐incrimination, and it is therefore “valid only
if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of
13
the relevant circumstances and likely consequences.’” Bradshaw v. Stumpf, 545
U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
Procedurally, pleas are governed by Rule 11 of the Federal Rules of
Criminal Procedure. Given the constitutional implications, “this Circuit has
adopted a standard of strict adherence to Rule 11 and . . . therefore we examine
critically even slight procedural deficiencies to ensure that the defendant’s guilty
plea was a voluntary and intelligent choice, and that none of the defendant’s
substantial rights has been compromised.” United States v. Livorsi, 180 F.3d 76, 78
(2d Cir. 1999) (quotations, citations, and modifications omitted). When a Rule 11
violation is raised in the district court, this Court reviews for harmless error. See
United States v. Tien, 720 F.3d 464, 469 (2d Cir. 2013). “In demonstrating harmless
error, it is not enough to negate an effect on the outcome of the case. Rather, the
Government must prove that the error was harmless beyond a reasonable
doubt.” Id. (citations and internal quotation marks omitted).
Rule 11 provides that “the court must address the defendant personally in
open court” and “must inform the defendant of, and determine that the
defendant understands” a long list of things, Fed. R. Crim. P. 11(b)(1), including
“any maximum possible penalty” and “any mandatory minimum penalty.”
14
Id. 11(b)(1)(H)‐(I). The district judge in this case did not personally inform the
defendant of any sentence at the plea hearing, but it is enough that the court
directed the prosecutor to do so. The baffling complexity of the prosecutor’s
account did, however, render serious the failure by the court to confirm that
Johnson understood the sentence that his guilty plea entailed. Johnson says that
he was confused, and it is easy to see how that might be. Johnson was not trained
in the law.
The most significant fact for Johnson at his plea hearing—a fact that he had
to understand for his plea to be voluntary, knowing, and intelligent—was that
life imprisonment was the certain consequence of pleading guilty. This was not
merely a potential sentence, or one possible maximum among other possibilities,
but his certain and inevitable sentence upon conviction. By pleading guilty, he
was effectively sentencing himself to spend the rest of his life in prison; yet this
fact was not conspicuous at his plea hearing, which included discussion of many
other “possible” (though actually impossible) sentences and robotic references to
(inapplicable) calculations and judicial discretion.
15
Johnson’s plea hearing, in relevant part, proceeded in three explanatory
stages, each of them comprehensible only from the perspective of a lawyer or
judge for whom plea hearings are routine.
The prosecutor’s first lengthy recital, specifying the “possible maximum,”
a “mandatory minimum,” the loss of certain rights, and statutory periods of
supervised release with additional terms of incarceration for violations, was
technically sound, but confusing and difficult to reconcile with the inevitability
of Johnson’s sentence. The “possible maximum” was no mere possibility; and
while conviction would bar Johnson from obtaining certain licenses and holding
certain public offices, discussion of these moot considerations, without effective
context, could only bespeak the possibility of a sentence short of life in prison.
The judge inadvertently compounded the confusion. Without asking
Johnson about what the prosecutor had just said, or whether Johnson understood
the mandatory life sentence, the judge discussed discretion and the Guidelines,
and the court’s ability to sentence “below the Guidelines or [e]ven outside of the
Guidelines depending upon the facts . . . .” App. 32. Everything the court said
was accurate, but the better Johnson understood those points, the less he could
appreciate that he would be sentenced to life, no matter what. So when Johnson
16
confirmed his understanding, all he could have understood is that judges
generally have considerable discretion in sentencing—not that in his sentencing
the judge would have none whatsoever.
The prosecutor’s long and technical explanation of the Sentencing
Guidelines described several widely‐varying potential sentences. When at length
the prosecutor came around to saying that the mandatory sentence “trumps” the
other potential sentences, it was at cross‐purposes to the earlier discussion. Even
the government conceded in its brief, Gov. Br. 33 n.11, and at oral argument that
it would have been better to clarify the mandatory minimum. Explaining the
statutory minimum in terms the defendant would understand was not just
advisable, but essential to a valid plea.
The prosecutor’s recitation would be unremarkable to a lawyer or a judge
who is accustomed to calculating a Guidelines range at every plea hearing;
indeed, although the Guidelines have been advisory since United States v. Booker,
543 U.S. 220 (2005), district courts are still required by statute to “consider” them
at sentencing, 18 U.S.C. § 3553(a)(4),3 and the Federal Rules of Criminal
3 The Supreme Court has interpreted this requirement as a direction that “district
court[s] should begin all sentencing proceedings by correctly calculating the applicable
17
Procedure require judges to explain this obligation to defendants and to
determine that they understand it before accepting a guilty plea, Fed. R. Crim. P.
11(b)(1)(M). The district court therefore can hardly be faulted for including this
discussion at the plea hearing, as is customary and generally required. But the
defendant’s understanding remains the paramount consideration. See United
States v. Maher, 108 F.3d 1513, 1521 (2d Cir. 1997) (“What is essential . . . is that . . .
the defendant actually understands.”).
Discussion of several “possible” sentences, notwithstanding their definite
inapplicability to the defendant, undermined the plea, which can be valid only if
the defendant has “sufficient awareness of the . . . likely consequences.” Brady,
397 U.S. at 748. The district court should have avoided confusion by clearly and
unambiguously telling the defendant that, notwithstanding everything else being
said, the consequence of his guilty plea would be a life sentence, period.
II
A remarkable feature of Johnson’s guilty plea, which seems to have gone
unnoticed or unmentioned at his plea hearing, is that Johnson evidently stood to
gain nothing from it. He had a constitutional right to a trial, and thereby at least a
Guidelines range.” Gall v. United States, 552 U.S. 38, 49 (2007).
18
chance of acquittal. Criminal defendants routinely waive that right and plead
guilty in order to benefit from an offense‐level reduction for acceptance of
responsibility under § 3E1.1 of the Sentencing Guidelines, or to avoid more
serious charges pursuant to a plea agreement. But Johnson had no plea
agreement and the mandatory life sentence mooted any offense‐level benefit. His
options, if he had understood them, were to plead guilty and receive a life
sentence, or to proceed to trial and receive a life sentence if convicted. The latter
might not turn out to be much better than the former, but it is no worse, and it
offers at very least a bargaining chip. Why, then, would Johnson take a naked
guilty plea?
Johnson’s letter seeking to withdraw his plea states that he would not have
pleaded guilty if he had understood the mandatory sentencing consequence
because he had “everything to gain going to trial versus just accepting a life
sentence.” And of course he is correct. In light of the circumstances, and absent
any explanation, the plea appears on its face irrational. There might be some
motive for a knowing and intelligent waiver in this situation, but none is
obvious, and the district judge did not attempt to elicit one. The district court
erred by failing to determine that the waiver was knowing and intelligent, “with
19
sufficient awareness of the relevant circumstances and likely consequences.”
Brady, 397 U.S. at 748.
The government contends that imposition of the statutory penalty was
“fairly communicated” to Johnson when the prosecutor stated that the statutory
sentence “trumps” the guidelines. A footnote in the government’s brief offers the
breathtaking understatement that “[t]his is not to say that it would have been
inadvisable for the district court thereafter to insure that Johnson understood
that the statutory mandatory minimum term of imprisonment was the guidelines
sentence.” Gov. Br. 33 n.11. Considering the context of the long and technical
allocutions and the judge’s discussion of (inapplicable) discretion, it is a dubious
proposition that anything was “fairly communicated”; but in any case, the
district court was obligated to determine that the defendant actually understood.
And he needed to understand not just that the mandatory minimum “was the
guidelines sentence” (which implies that the judge has discretion to depart from
it, since the Guidelines are advisory) but that it was the actual and inevitable
sentence. “[A] plea of guilty is more than an admission of conduct; it is a
conviction.” Boykin v. Alabama, 395 U.S. 238, 242 (1969). It is “a grave and solemn
act to be accepted only with care and discernment.” Brady, 397 U.S. at 748. And
20
“it cannot be truly voluntary unless the defendant possesses an understanding of
the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466
(1969).4
The only way to ensure that such a seemingly irrational plea is made
knowingly is to tell the defendant clearly and unambiguously that the judge will
have no discretion at sentencing, and that accepting the plea will result in no less
than the mandatory sentence—in this case, to tell Johnson that pleading guilty
means he will be sentenced to life in prison and that no other outcome is
possible. The district judge was required to determine that Johnson understood
this. If the judge had explained it, it is unlikely that Johnson, if rational, would
have taken the plea. It was clearly not entered voluntarily, knowingly, and
intelligently.
The government supports its position with a citation to United States v. Rodriguez, 725
4
F.3d 271 (2d Cir. 2013), but that case is inapposite. The defendant argued that delegating
the explanation of penalties to the prosecutor violated Rule 11, and we held that he
understood his sentencing exposure and that the delegation “did not affect his decision
to plead guilty.” Id. at 276. Johnson, by contrast, likely would not have pleaded guilty if
he had understood that doing so would necessarily result in a life sentence; and we
hold that the district court violated Rule 11 not by delegating the explanation of the
penalties to the government, but by failing to ensure that Johnson understood them.
21
Accordingly, we vacate the judgment of conviction and the plea
underlying it. Because we hold that it was error to accept and enter Johnson’s
guilty plea, we do not reach any arguments he raises with respect to the
supposed failure to hold a hearing on his letter motion.
III
We usually remand cases “without any directions or suggestions as to the
judge before whom they are to be conducted.” United States v. Robin, 553 F.2d 8, 9
(2d Cir. 1977). But there are circumstances in which:
both for the judge’s sake and the appearance of justice, an
assignment to a different judge is salutary and in the public
interest, especially as it minimizes even a suspicion of
partiality. In such circumstances our remand does not imply
any personal criticism of the trial or sentencing judge. . . .
[T]he principal factors considered by us in determining
whether further proceedings should be conducted before a
different judge are (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.
Id. at 10 (quotations and citations omitted).
22
The first factor is either neutral or weighs only lightly in favor of
reassignment in this case. The original judge did not rely on erroneous factual
findings or on evidence that must be rejected. On remand, he would need to put
out of his mind his earlier acceptance of Johnson’s guilt and any adverse findings
from the presentence investigation report; but he would not reasonably be
expected to have substantial difficulty doing so.
We nevertheless find, on the basis of the second factor taken in conjunction
with the third, that it would be “salutary and in the public interest” for the case
to be reassigned “to preserve the appearance of justice.” If Johnson does proceed
to trial, the appearance of justice would best be preserved if he can do so before a
judge who has not already accepted his guilt. Even assuming, as we do, that the
original judge would be able to put earlier proceedings out of his mind and
preside fairly, the “countervailing considerations of efficiency and feasibility” are
weak in this case. Id. at 11. Johnson pleaded guilty without extensive earlier
proceedings and the case does not appear to be factually complex, so there is no
indication that the original judge “has gained familiarity with a detailed factual
record” that would be wasteful for another judge to replicate. Id. at 10.
23
Reassignment would therefore not “entail waste and duplication out of
proportion to any gain in preserving the appearance of fairness.” Id.
Accordingly, we direct that the case be reassigned on remand.
CONCLUSION
For the foregoing reasons, we vacate the judgment of the district court and
the guilty plea, direct that the case be reassigned, and remand for further
proceedings consistent with this opinion.
24
United States v. Johnson
Combined Opinion