
    UNITED STATES of America, Appellee, v. Hector HERNANDEZ, Defendant-Appellant.
    Nos. 10-5215-cr (Lead), 10-5315-cr (Con).
    United States Court of Appeals, Second Circuit.
    Feb. 3, 2012.
    
      John J. Durham, Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.
    Joyce C. London (Michael A. Young, on the brief), Joyce C. London P.C., New York, NY, for Defendant-Appellant.
    Present: DENNIS JACOBS, Chief Judge, PIERRE N. LEVAL, DEBRA A. LIVINGSTON, Circuit Judges.
   SUMMARY ORDER

Defendant-Appellant Hector Hernandez appeals from a judgment of the United States District Court for the Eastern District of New York, sentencing him on remand from this Court to a term of 384 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

In 1991, following a jury trial, Hernandez was convicted of four counts related to conspiracies to distribute narcotics, kidnap and assault, commit murder, and use a firearm in a drug trafficking offense. See United States v. Hernandez, 604 F.3d 48, 50-51 (2d Cir.2010). On December 20, 1991, District Judge Thomas C. Platt sentenced Hernandez to 405 months of incarceration, five years of supervised release, a $250,000 fine, and a $200 special assessment. See id. at 51. The 405-month sentence reflected a four-level enhancement for Hernandez’s leadership role in the offenses that had been included in the pre-sentence report. See id.

In December 1993, this Court affirmed the finding of guilt. See United States v. Rosa, 11 F.3d 315, 345 (2d Cir.1993). However, we also found that Judge Platt had made no factual findings to justify the four-level leadership enhancement. “Accordingly, we vaeate[d] Hernandez’s sentence and remand[ed] for a factual finding on that issue.” Id. at 344.

The resentencing process did not begin for 15 years — until August 2008. By that point, Hernandez had already served 19 years in prison. While incarcerated, he had maintained a clean disciplinary record, earned a business degree and a diploma in financial planning, tutored other inmates, and received positive performance reports in his prison jobs. See Hernandez, 604 F.3d at 53. Hernandez cited to this evidence of rehabilitation and urged Judge Platt to impose a sentence lower than 405 months.

Judge Platt, however, rejected these arguments, asserting that his only obligation on remand was to make a factual finding as to the four-level leadership enhancement. In his Statement of Reasons, he explained that “[t]he action was remanded from the United States Court of Appeals for the sole purpose of placing findings as to the defendant’s role in the offenses.... ” Id. at 52. Judge Platt added that, notwithstanding the narrow remand mandate, he had “entertained the motions presented in defendant’s sentencing memorandum. All those arguments were denied.” Id. He reimposed a 405-month sentence on March 27, 2009.

On appeal, we again vacated the sentence. We found that “the district court procedurally erred in failing to consider how intervening developments — in particular, Hernandez’s rehabilitation — affected the Section 3553(a) analysis.” Id. at 53. During the 15 years that elapsed between the issuance of our mandate and the 2009 resentencing, “the law of sentencing substantially evolved, and Hernandez may have undergone a remarkable rehabilitation.” Id. at 54. We ruled that, in view of these changed circumstances, Judge Platt was obligated to re-sentence Hernandez de novo. See id. Because Judge Platt had confined his fact finding to evidence bearing on the four-level leadership role enhancement, we held that “[tjhis procedural error requires vacatur of the 2009 re-sentencing and remand for a third sentencing proceeding.” Id. at 55.

Rather than remand to Judge Platt, we directed that the case be reassigned to a different district judge. See id. We observed that “Judge Platt has twice imposed a 405-month sentence without making the required findings or without providing the necessary assurance that all of the relevant factors have been considered,” id. at 56, and we expressed concern that Judge Platt would “ ‘have substantial difficulty ignoring his previous views during a third sentencing proceeding,’ ” id. (quoting United States v. DeMott, 513 F.3d 55, 59 (2d Cir.2008)). We added that “ ‘an objective observer might ... question [the judge’s] impartiality.’ ” Id. (brackets in original) (quoting DeMott, 513 F.3d at 59).

On remand, the case was reassigned to District Judge Sandra J. Feuerstein. Upon resentencing, Judge Feuerstein declined to consider the disputed issue whether Hernandez should receive a four-level leadership enhancement. She stated, “In my opinion, Judge Platt clearly and concisely stated the reasoning for the four-level leadership enhancement, and since he was the trial judge and substantiated the enhancement based upon the evidence which was adduced at the trial, I will not revisit that issue.... ” Judge Feuerstein then imposed a sentence of 384 months. Hernandez appealed.

We conclude that, by declining to revisit the issue and instead accepting Judge Platt’s imposition of the four-level leadership enhancement, Judge Feuerstein failed to accord Hernandez a de novo resentenc-ing. We directed that the case be reassigned for resentencing because we believed that having a different district judge sentence Hernandez was necessary to preserve “ ‘the appearance of fairness.’ ” Hernandez, 604 F.3d at 56 (quoting DeMott, 513 F.3d at 59). The purpose of the reassignment was defeated if the newly assigned judge relied on and adopted the findings of the prior judge. The purpose of our mandate required that the newly assigned judge make her own determinations as to all aspects of the sentencing decision. See United States v. Rigas, 583 F.3d 108, 118 (2d Cir.2009); United States v. Quintieri, 306 F.3d 1217, 1228 (2d Cir.2002). We therefore vacate the sentence and remand with instructions to the district court to conduct a de novo resentenc-ing.

Because Hernandez will be resentenced de novo, we need not consider his arguments as to other aspects of the sentence imposed. The judgment of the district court is hereby VACATED, and the matter REMANDED.  