Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Raymond M. GRAY, Defendant-Appellant.

No. 90-30144.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 1991.* Decided March 13, 1991.

Appeal from the United States District Court for the Western District of Washington, No. CR-88-35-T; Jack E. Tanner, District Judge, Presiding.

W.D. Wash.

REVERSED AND REMANDED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT and FARRIS, Circuit Judges.


MEMORANDUM** 

Raymond M. Gray appeals his sentence following his conviction for failure to appear in violation of 18 U.S.C. § 3146(a) and (b). The government concedes that Gray must be resentenced because the district court did not adequately set forth or support its reasons for upward departure under United States v. Ward, 914 F.2d 1340, 1348 (9th Cir. 1990), and United States v. Montenegro-Rojo, 908 F.2d 425, 427, 431 (9th Cir. 1990).

Gray argues that his resentencing must be assigned to a different judge because Judge Tanner has irrevocably expressed his intention to consider as a basis for upward departure disputed facts, in particular that Gray has access to the funds lost by the financial institutions involved in Gray's earlier conviction. Under United States v. Arnett, 628 F.2d 1162 (9th Cir. 1979), Gray must show personal bias against him or that reassignment is appropriate under a consideration of the following factors:

(1) [W]hether 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 1165 (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc)). Reassignment is not appropriate in this case because we are confident that on remand, Judge Tanner will comply with the requirements of Ward and Montenegro-Rojo by making an adequate factual finding to support any factors he finds justify upward departure.

On remand, the district court must also comply with our holding in United States v. Turner, 905 F.2d 300, 301 (9th Cir. 1990), requiring strict compliance with Sentencing Guidelines section 6A1.1 and Federal Rule of Criminal Procedure 32(c) (1).

REVERSED AND REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3