Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.George R. BACHMAN, Defendant-Appellant.
No. 88-5151.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 31, 1990.* Decided Feb. 14, 1990.
Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges.
MEMORANDUM**
Appellant George Bachman appeals his sentence following a guilty plea to three counts of mail fraud. Prior to sentencing, Bachman's counsel withdrew from the case. Although Bachman was eligible for appointed counsel and he did not waive that right, the district court proceeded with the sentencing hearing and imposed a sentence on the unrepresented defendant. On appeal, Bachman argues, and the United States agrees, that the district court sentence is invalid due to the deprivation of appellant's sixth amendment right to counsel. Appellant also claims that he was denied the right to full allocution at sentencing and that he was denied effective assistance of counsel in preparing for sentencing. Finally, appellant requests resentencing by a different judge. We overturn the sentence of the district court but reject appellant's request for a remand to a different judge.
DISCUSSION
Sentencing is a critical stage of the criminal prosecution process and therefore defendants are entitled to effective assistance of counsel at sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977); United States v. Balough, 820 F.2d 1485, 1490 (9th Cir. 1987). Although Bachman was entitled to be represented at sentencing and did not waive that right, he was not represented by counsel. The United States concedes that Bachman should have had the assistance of counsel at sentencing and has joined Bachman's request that the case be remanded for resentencing. We agree, and order the case remanded.
Appellant also claims that the district court improperly limited him from addressing the court regarding issues in the presentence report. Since we are overturning the sentence imposed by the district court, we need not address this claim.1
Finally, appellant has requested that the case be remanded to a different judge for resentencing. "Remand to a different judge is not the usual remedy when error is found in district court proceedings." United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979). The factors we consider in deciding whether or not to remand to a different judge are:
(1) Will the original judge be able to put out of his mind previous views or findings that are either erroneous or based upon evidence which cannot be considered;
(2) " [W]hether reassignment is advisable to preserve the appearance of justice";
(3) Will any benefit to the appearance of justice be outweighed by waste or duplication.
United States v. Bagley, 837 F.2d 371, 376 (9th Cir.), cert. denied, 109 S. Ct. 304 (1988).
There is no indication that the district court imposed a sentence using erroneous or improper evidence. Appellant is asking this court to remand this case to another judge in order to serve the appearance of justice. We find no need to take this unusual step. Although the district court used harsh language against Bachman at the sentencing hearing, there is no evidence that the judge created the appearance of unfairness. In fact, the sentence imposed by the court was the sentence recommended by the probation office and was well below the maximum sentence available. We therefore reject appellant's request to have the case remanded to a different judge.
Appellant's sentence is VACATED and the case is REMANDED for resentencing.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Appellant has also raised a claim of ineffective assistance of counsel at sentencing due to alleged failures of counsel prior to the sentencing hearing. Since we are remanding the case for resentencing, we need not address this issue
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