Thorne v. United States, 46 A.3d 1085

Thorne was convicted in a non-jury trial of possession of heroin, a misdemeanor, and sentenced to 180 days in prison.
Thorne appealed for summary reversal and resentencing before a different judge, arguing the trial judge punished him for exercising his right to cross-examine the government chemist.
The government suggested remanding for clarification on sentencing basis due to ambiguity in the judge’s comments.
During sentencing, the judge stated she would take into account that Thorne called the chemist to testify, and sentenced him to the maximum, with no suspension.
The court remanded for resentencing before a different judge, to preserve appearance of justice and avoid vindictive sentencing; this opinion explains why.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the sentencing violate due process by punishing the defendant for exercising confrontation rights?	Thorne; punishment due to exercising Sixth Amendment right	Anderson; sentence justified by trial conduct evidence	Yes; improper basis for sentence (vindictive or punitive against rights exercised)
May a trial judge rely on a defendant’s trial decisions to withhold or increase sentencing credit?	Thorne; trial decisions should not affect acceptance of responsibility	Anderson; judge may weigh trial conduct	No; cannot base punishment on trial decisions unrelated to acceptance of responsibility
Is it improper to sentence a defendant more harshly for exercising the right to confrontation?	Thorne; cross-examination rights were exercised	Anderson; sentencing discretion allows consideration of conduct	Yes; punishment for exercising confrontation rights violates due process
Should resentencing occur before a different judge to preserve appearance of justice?	Thorne; recusal desired to avoid potential bias	Government; remand for clarity but not necessary for judge change	Yes; remand to a different judge is appropriate

Coles v. United States, 682 A.2d 167 (D.C.1996) (acceptance of responsibility as a sentencing factor; trial strategy cannot justify enhanced sentence)
United States v. Crocker, 788 F.2d 802 (1st Cir.1986) (judge cannot enhance sentence for standing trial; vindictiveness risk)
United States v. Cruz, 977 F.2d 732 (2d Cir.1992) (remand for resentencing when pretrial remarks threaten vindictive sentencing)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (confrontation right and reliability of forensic evidence; must confront analysts)
United States v. Whitten, 610 F.3d 168 (2d Cir.2010) (vindictiveness concerns in sentencing after exercising rights)