Lence

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed July 27, 2006, is hereby ordered amended as follows:

Slip Op. at 8422: Insert a new Section II.B, which reads as follows:

Thus, when a defendant preserves a claim of Sixth Amendment error and the sentencing judge — operating under pre-Booker mandatory Guidelines — expresses doubts about the Guidelines sentence being the correct sentence, that judge ordinarily should conduct the resentencing. This course allows the judge to assess subjectively whether he felt compelled to impose the Guidelines sentence. A defendant who preserves a claim of error should receive no less of a chance to benefit from this subjective assessment than a defendant who fails to preserve a claim of error and obtains a limited Ameline remand.

This rule does not extend to situations in which resentencing by the original sentencing judge would be unjust (as in the case of a pending complaint of misconduct against that judge) or impractical (as in the case of judicial disability, retirement, recusal, or death). In such extenuating circumstances, reassignment is permissible and the reason should be noted in the record.

Thus, we conclude that…