United States v. John A. Lence

We must decide whether a criminal defendant has a right to be resentenced by his original sentencing judge on remand following Booker error.

I

In June 2002, a jury convicted John Lence, an attorney and certified public accountant, of fourteen counts of bank fraud and one count of conspiracy to commit bank fraud. Chief Judge Donald W. Molloy presided at Lence’s trial and sentencing and calculated a base offense level of 6 with enhancements for amount of loss, more than minimal planning, and abuse of trust, resulting in an adjusted offense level of 20 and a sentencing range of 33-41 months.

Chief Judge Molloy granted a downward departure because he termed Lence’s offense “outside of the heartland.” He also considered Lence’s relationship with his children and the loss of Lence’s law and certified public accountant licenses. He imposed a sentence of 24 months, the bottom of the sentencing range after the downward departure, a $7,500 fíne, and three years of supervised release, stating at the time:

Lence appealed, and the government cross-appealed. In an unpublished disposition, we affirmed Lence’s conviction but vacated his sentence and remanded for resentencing, holding the…