A poll of the judges in regular active service having been taken, and there being no majority in favor of rehearing en banc,
Upon consideration, it is determined that rehearing en banc shall not be ordered.
TIMBERS, Circuit Judge, dissenting from denial of rehearing en banc:*fn1
Less than a year ago, in United States v. Robin, 553 F.2d 8 (2 Cir. 1977), the nine active judges of this Court unanimously agreed upon certain guidelines to be considered "in deciding whether to remand for retrial or resentencing before a different judge and to assure that no personal criticism of the original judge is involved." Id. at 11.
Our unanimous decision in Robin, referred to above, emerged from en banc proceedings which in turn followed a 2-1 panel decision in which I dissented, 545 F.2d at 782-84, inter alia, on the ground that the majority's asserted reason for vacating the sentence - namely, that the defense had not been given sufficient time to examine the presentence report - surely would not impair the ability of that judge to reimpose sentence on remand. Judge Motley was the original sentencing judge in Robin. I dissented from Judge Moore's direction for the panel majority that "resentencing will be before a different judge." 545 F.2d at 782. And while I was one of the nine active judges who later unanimously agreed upon the guidelines for remanding to a different judge for retrial or resentencing, 553 F.2d 8, I also was one of the three active judges who thought that those guidelines did not warrant assignment of the case to a judge other than Judge Motley for resentencing:
"Judges Oakes, Timbers and Meskill, while concurring in the foregoing principles, believe that their application to the facts of this case does not warrant assignment of the case to a different judge for resentencing upon remand." 553 F.2d at 11.
Now less than a year later, Judge Moore's panel majority opinion in the instant Ramos case, concurred in by Judge Feinberg, concludes that "since no 'reasons for selecting the particular sentence to be imposed' were stated by the Court.... [the] present sentence should be vacated and Ramos should be re-sentenced after hearings conducted before another judge." F.2d at (emphasis added).
It strikes me as elemental that, if the true reason for vacating this sentence is that the sentencing judge erred in failing to give reasons for his sentence, then he should be given the opportunity to explain why he did what he did, by remanding the case to him for re-sentencing. To cut off this opportunity is demeaning to the trial judge - precisely one of the things we sought to guard against in our en banc opinion in Robin: "to assure that no personal criticism of the original judge is involved." 553 F.2d at 11.
Significantly the panel opinions in the instant Ramos case are eloquently silent with respect to the unanimous Robin guidelines for remanding for resentencing by a different judge. I suggest that the reason for this is that, by the very nature of the case and the reasons for vacating the sentence, there could be no rational justification for not remanding to Judge Platt for resentencing.
For these reasons I respectfully dissent from the denial of ...