United States v. Alfred Arnold Ameline

concurring in part and dissenting in part.

I agree that Ameline’s sentence must be vacated and remanded due to the district court’s error under United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). I therefore concur in Parts I, II and V of th'e majority opinion. I also concur in the concurring and dissenting opinions of Judges O’Scannlain, Wardlaw (Part I), and Gould to the extent 'they conclude it is the responsibility of this court, not the district court, to determine whether “the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74 , 124 S.Ct. 2333, 2340 , 159 L.Ed.2d 157 (2004).

I disagree with all of my colleagues, however, as to how this court should conduct its review in cases in which there is forfeited Booker error, but the record as to sentencing is not sufficiently developed to discern whether the error prejudiced the defendant. I therefore dissent from Parts III, IV and VI of the majority opinion, and the dissenting opinions that would restrict appellate court review of the effect of such Booker error to the record before the sentencing court.

Two…

This case requires us to apply the United States Supreme Court’s ruling in United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). In Booker , the Supreme Court struck down the sentencing scheme created by the Sentencing Reform Act of 1984 to the extent that the Act mandated the imposition of sentences predicated on facts not found by the jury or admitted by the defendant. To remedy the constitutional infirmity, the Court severed the mandatory portions of the Act, rendering its sentencing provisions, including the Sentencing Guidelines, effectively advisory. Left unresolved by Booker is the question of what relief, if any, is to be afforded to a defendant who did not raise a Sixth Amendment challenge prior to sentencing. We reheard this case en banc to address this issue for cases pending on direct review.

We are aware that our opinion is of considerable interest to the judges and practitioners in this Circuit who will face a myriad of issues post -Booker. We will not endeavor to foresee or address all potential ramifications of the Booker decision. However, we think it appropriate to amplify the context within which we decide this case in the hope of…

with whom GOULD, Circuit Judge, joins, and with whom O’SCANNLAIN and BEA, Circuit Judges, join with respect to Part I, concurring in part and dissenting in part:

The district court erred by treating the factual statements in the Presentence Report as presumptively accurate and placing the burden on Ameline to disprove them. See United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). I therefore concur in the majority’s decision to vacate Ameline’s sentence and to remand his case for a new sentencing hearing pursuant to Federal Rule of Criminal Procedure 32. I respectfully dissent, however, from the majority opinion because it improperly delegates to the district courts our discretionary appellate function to conduct plain error review of unpreserved claims of Booker error. The resulting wholesale remand of hundreds, possibly thousands, of sentencing appeals elevates our administrative concerns over the law as pronounced by the Supreme Court in United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and over the interests of individual justice.

I.

Flaws in the Majority’s “Limited Remand” Approach

The majority accurately characterizes the Booker error. A…

with whom WARDLAW, Circuit Judge, joins, and O’SCANNLAIN and BEA, Circuit Judges, join in part, concurring in part and dissenting in part:

I concur in Parts I and V of the majority opinion, and in the judgment vacating *1101 Ameline’s sentence and remanding for the district court to give Ameline a new sentencing hearing consistent with our precedent in United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). I also concur in Judge Wardlaw’s partial concurrence and partial dissent concerning the proper approach under United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), but write separately to elaborate my views.

I

The relief of resentencing for Ameline is required by Howard, 894 F.2d at 1090 , and by the government’s concession of error. 1 An imprisoned person who shows a right to relief on appeal must receive it in due measure, else due process is not satisfied. See Hicks v. Oklahoma, 447 U.S. 343, 347 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980) (holding that state appellate court deprived petitioner of liberty without due process of law by “simply affirm[ing] the sentence imposed ... under the invalid mandatory [sentencing] statute”); see also Lassiter…

409 F.3d 1073 UNITED STATES of America, Plaintiff-Appellee, v. Alfred Arnold AMELINE, Defendant-Appellant. No. 02-30326. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc March 24, 2005. Filed June 1, 2005. Michael R. Dreeben, U.S. Dept. of Justice, Washington, DC, Michael A. Rotker, Atty., U.S. Dept. of Justice, Criminal Div., Appellate Sec., Washington, DC, for Plaintiff-Appellee. Steven Hubacheck, Federal Defenders of San Diego, San Diego, CA, for Defendant-Appellant. Anthony R. Gallagher, Esq., Assistant Federal Public Defender, Great Falls, MT, for Amicus Curiae Federal Public and Community Defenders. Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-02-00011-SEH. Before SCHROEDER, Chief Judge, O'SCANNLAIN, HAWKINS, THOMAS, WARDLAW, W. FLETCHER, FISHER, GOULD, RAWLINSON, CLIFTON, and BEA, Circuit Judges. RAWLINSON, Circuit Judge. 1 This case requires us to apply the United States Supreme Court's ruling in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). In Booker , the Supreme Court struck down the sentencing scheme created by the Sentencing…

with whom Judge Bea joins, concurring in part and dissenting in part:

With hundreds of Roofcer-implicated cases awaiting disposition, we have chosen one of the worst possible vehicles in our inventory — one that presents a clear sentencing error unrelated to the constitutional issue for which we took it en banc to decide. I am fascinated that while we unanimously agree that Ameline’s sentence must be vacated and remanded to the district court for resentencing because of the Howard error, the district court judge in this case is free to resentence on a clean slate and to apply Booker as he sees fit.

However, since the Court now promulgates the Second Circuit’s “limited remand” without vacatur approach as our standard for all other pending Booker-related appeals, I would, instead, follow the jurisprudence of the Fifth and Eleventh Circuits as described in, respectively, United States v. Mares, 402 F.3d 511 (5th Cir.2005), and United States v. Rodriguez, 398 F.3d 1291 (11th Cir.2005), and simply apply plain error review with our usual vigor — to use the majority’s language— “the way plain error review normally works.” Maj. op. at 1080.

Forced to make the best of our predicament, I…