Unpublished Disposition, 936 F.2d 581 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 936 F.2d 581 (9th Cir. 1989)

UNITED STATES Of America, Plaintiff-Appellee,v.John Mitchell MAGLE, Defendant-Appellant.

No. 90-10413.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 1991.Decided June 24, 1991.

Before BEEZER, NOONAN and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

John Mitchell Magle appeals his sentence for escape from federal custody in violation of 18 U.S.C. § 751(a). He argues that the sentencing judge should have reduced his offense level for acceptance of responsibility and should not have departed upward. Magle also requests a remand to a different judge.

We vacate the sentence and remand for resentencing.

BACKGROUND

On November 29, 1989 John Mitchell Magle "signed out" of Eclectic Communications, Inc. ("ECI"), a halfway house where he was in federal custody. He never returned to ECI.

Magle was later indicted for aiding and abetting a bank robbery and for escape. Magle pleaded not guilty to both charges. A jury acquitted Magle of the robbery charge, but convicted him of escape.

Magle's presentence report stated that he should be given a two-point reduction for acceptance of responsibility. The report also revealed Magle's extensive criminal history, drug addiction, and failure to comply with rehabilitation efforts.

The sentencing judge did not grant the two-point reduction. In addition, the sentencing judge departed upward although Magle was already in the highest criminal history category under the Sentencing Guidelines--Category VI. Magle appeals the sentence. He also argues that the sentencing judge was biased and requests remand to a different judge.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. § 3742. We review a determination of no acceptance of responsibility for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). We review de novo whether the Guidelines permit a court to depart upward. United States v. Singleton, 917 F.2d 411, 412 (9th Cir. 1990).

DISCUSSION

The probation officer conducted a post-conviction interview with Magle and determined that he had accepted responsibility under U.S.S.G. Sec. 3E1.1 (Nov.1989). Based largely on Magle's noncredible testimony at trial regarding the escape, the sentencing judge disagreed with that conclusion.1  The court did not commit clear error. It was entirely reasonable to find that a defendant who was willing to give noncredible testimony regarding an offense had not accepted responsibility for that offense.

Magle's argument that the testimony was given in defense of the robbery charge and not the escape does not change our holding. In fact, his testimony tended to minimize his escape activity and culpability. The record clearly shows that the district judge found that Magle's lack of acceptance of responsibility related to the crime of conviction--escape. See United States v. Goodrich, 919 F.2d 1365, 1370 (9th Cir. 1990) (fact that district judge specified crime of conviction evidenced that he looked to proper crime when determining acceptance of responsibility).2 

The sentencing judge stated that his reason for departing upward was "that the Guidelines do not adequately reflect the extent to which Mr. Magle's life has been involved in criminal behavior." That is a permissible basis for upward departure under U.S.S.G. Sec. 4A1.3 (Nov.1989). However, that does not end our inquiry. The sentencing judge was required to specify the particular facts that illustrate why Magle is unlike other defendants in the same criminal history category. Singleton, 917 F.2d at 412.

The sentencing judge in this case did not incorporate the factual findings of the presentence report, nor cite specific instances of conduct, nor mention dates of the conduct. Instead, the judge referred generally to the nature of Magle's history and made a conclusory statement that Magle is a bad man whose history is replete with violence and manipulation of authorities. That is insufficient. Undoubtedly, most men in Category VI are not good men, and most will have unsavory criminal histories. The court must specify what makes Magle worse than the mine run of Category VI denizens. United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989); United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989).

Furthermore, the sentencing judge was required to articulate specific reasons for the amount of departure, so that we may review whether the amount of departure was reasonable. United States v. Gayou, 901 F.2d 746, 749-50 (9th Cir. 1990). In this case, the sentencing judge merely stated the conclusion that he was increasing the offense level by three points. That is also insufficient.

We remand to the sentencing judge so that he may provide specific reasons for both the basis of departure and the amount of departure.

A remand to a different sentencing judge is not warranted unless there are "unusual circumstances" based on the following factors: (1) whether the original judge would have substantial difficulty putting out of his mind previous rulings that we have found erroneous, (2) whether reassignment is necessary to preserve the appearance of justice, and (3) whether reassignment would entail more waste and duplication than it would gain. United States v. Bagley, 837 F.2d 371, 376 (9th Cir.), cert. denied, 488 U.S. 924, 109 S. Ct. 304, 102 L. Ed. 2d 323 (1988).

There is no indication in the record that the sentencing judge was biased and could not put aside the sentencing errors and reconsider the sentence. Moreover, a remand to the same judge would not undermine the appearance of justice. We decline to remand to a different judge.

Sentence VACATED and case REMANDED for resentencing.

 *

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

 1

The fact that the district judge considered the probation officer's recommendation but disagreed with it indicates that the district judge did consider Magle's post-conviction conduct. See United States v. Watt, 910 F.2d 587, 593 (9th Cir. 1990) (requiring a sentencing judge to consider post-plea bargain behavior)

 2

United States v. Brady, 928 F.2d 844, 847-48 (9th Cir. 1991) does not affect our decision. Magle had ample notice that the probation officer's recommendation that he have an acceptance reduction was contested. Both he and the government briefed the issue before the sentencing hearing