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United States v. Lence
Citation: Not availableDocket: 05-30236
Court: Court of Appeals for the Ninth Circuit; October 24, 2006; Federal Appellate Court
Original Court Document: View Document
The United States Court of Appeals for the Ninth Circuit has amended its opinion regarding the appeal of John A. Lence, who challenges his sentencing. The court has determined that, following the precedent set by the Booker decision, the original sentencing judge should generally preside over any resentencing hearings when a defendant preserves a Sixth Amendment error claim. This is especially pertinent if the judge previously expressed doubts about the appropriateness of the Guidelines sentence imposed. However, exceptions exist if the original judge is unable to preside due to reasons such as misconduct complaints, judicial disability, retirement, recusal, or death, in which case reassignment is allowed and must be documented in the record. The court emphasized that a defendant who preserves a claim of error should have the same opportunity to benefit from the original judge's subjective assessment as a defendant who does not preserve such a claim. In Lence's case, he is to be resentenced by Chief Judge Molloy unless there are extenuating circumstances justifying reassignment. Additionally, the court addresses Lence's argument regarding judicial estoppel, which prevents a party from taking contradictory positions in legal proceedings. The court references the doctrine's application and its implications for the government's attempt to apply certain sentencing enhancements that had previously been rejected. An inconsistent factual or legal position is necessary for applying the doctrine of judicial estoppel. In Yanez v. United States, the government did not present an inconsistent position; it argued enhancements based on facts but claimed they had not been proven to a jury. During Lence’s first sentencing, the government supported the enhancements, which Chief Judge Molloy applied. At the second sentencing, the government requested not to apply the enhancements due to confusion from the Blakely decision. However, by Lence’s third sentencing, the Supreme Court's ruling in Booker clarified that judicial consideration of additional facts under the now-advisory Guidelines does not violate the Sixth Amendment. The court noted that the government did not adopt a position inconsistent with prior arguments. Chief Judge Molloy understood the uncertainties from Blakely and the valid reasons for the government's stance. The government does not gain an unfair advantage or impose detriment on Lence by pursuing enhancements at resentencing since the judge holds significant discretion post-Booker. Consequently, judicial estoppel is not supported in this case, allowing the government to seek the enhancements during Lence’s resentencing. The sentence is vacated, and the case is remanded for resentencing with the original judge, permitting the government to request the enhancements.