Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding Manuel L. Real, District Judge, Presiding D.C. No. 2:07-cr-00113- ODW-1
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
Argued and Submitted January 10, 2012-Pasadena, California
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and William A. Fletcher, Circuit Judges.
Opinion by Judge Reinhardt
Robert McGowan ("McGowan"), a former state prison guard, appeals his conviction and sentence stemming from his assault on two inmates. His case has been before us once before: we previously reversed the district court's grant of a judgment of acquittal following the jury's guilty verdict. McGowan now contends that the district court erred in failing to conditionally rule that he was entitled to a new trial if the judgment of acquittal were to be reversed, and that he was deprived of the effective assistance of counsel when his trial counsel failed to make a new trial motion. We hold that a district court is not required to make, indeed has no authority to make, any ruling as to the grant of a new trial unless the defendant makes a motion requesting such a ruling. We also dismiss McGowan's ineffective assistance claim without prejudice to its being raised in a proceeding under 28 U.S.C. § 2255. McGowan further contends that he was deprived of due process when the district judge relied on a prison inmate's unreliable allegations at sentencing. Because the allegations in question were insufficiently reliable to serve as a basis for the 51-month sentence imposed, we vacate McGowan's sentence and remand for re-sentencing. That proceeding, as well as any collateral proceedings, shall be held before a new district judge.
McGowan was indicted on two counts of violating 18 U.S.C. § 242 by depriving inmates of their constitutional right to be free of cruel and unusual punishment. He was also charged with conspiring to obstruct justice for his participation in a scheme to impede the grand jury investigation of the assaults in which he was involved. After a jury found him guilty on all counts, he moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c). He did not, however, move for a new trial pursuant to Federal Rule of Criminal Procedure 33. The district judge granted McGowan's motion for acquittal, but did not indicate how he would have ruled on a motion for a new trial had one been made.
The government appealed the district court's grant of a judgment of acquittal on the § 242 counts. We reversed, holding that the evidence was sufficient to allow a jury to conclude that McGowan had "used force against two inmates for the sole purpose of causing them harm," and remanded for assignment to another district judge. United States v. McGo- wan, 338 Fed. Appx. 662 (9th Cir. 2009). Following the remand, McGowan filed a motion for a new trial, which the new district judge denied as untimely.
Upon the reinstatement of McGowan's conviction, the probation office submitted a report that calculated McGowan's Sentencing Guidelines range as 41 to 51 months of incarceration. It later submitted a letter recommending that McGowan nevertheless be sentenced to a term of probation and home detention. The government objected to the probation office's recommendation, disputing, among other things, the characterization of McGowan as a "productive and law abiding member of his community." The government emphasized that McGowan had been accused of using methamphetamine and smuggling drugs to inmates in prison, allegations that it argued were "sufficiently credible that he should not receive a below guidelines sentence based on previous good conduct." These allegations were based entirely on the claims of Ricky Seevers ("Seevers"), an inmate who served time at the Chino state prison at which McGowan worked.
At the sentencing hearing, the new district judge calculated the Guidelines range to be 51 to 63 months.*fn1 After hearing arguments from both parties, he announced that he was imposing a sentence of 51 months. In the course of explaining how he had arrived at this decision, he recounted Seevers' allegations regarding McGowan's drug activities, concluding that this "information was ...