United States v. Blaine Travis Fifield

Opinion by Judge TASHIMA; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge TASHIMA

On his first appeal, Blaine Travis Fifield was granted a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). On remand, the district court declined to revisit Fifield’s sentence. Fifield again appeals, arguing that the district court erred by failing to request his views regarding an appropriate sentence under the advisory guidelines regime before making its decision. We have jurisdiction over the appeal pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 , and we again remand.

FACTUAL AND PROCEDURAL BACKGROUND

Fifield was convicted in Montana state court in early 2003 for the felony of assault with a dangerous weapon. Thereafter, Fi-field was charged in federal court with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1), and one count of being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(3) and 21 U.S.C. § 802 . Fifield pleaded guilty, and the district court calculated the then-mandatory Sentencing Guidelines’ range at 46 to 57 months’…

concurring specially:

I agree with the court that United States v. Montgomery, 462 F.3d 1067 (9th Cir.2006), requires a remand because the sentencing judge did not consider the views of counsel before affirming Fifield’s sentence on limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). However, I write separately to express my concern that Montgomery transforms the role of the judge in a way that the decision in Ame-line does not require.

The crux of the problem is Ameline’s reference to the remand procedure established by the Second Circuit in United States v. Crosby, 397 F.3d 103, 120 (2d Cir.2005). The Crosby decision states that a sentencing judge assessing the reasonableness of a pre-Booker sentence “should obtain the views of counsel, at least in writing,” prior to determining whether she would have chosen the same sentence under advisory guidelines. 397 F.3d at 120 . This court’s Ameline decision cites Crosby and agrees “that the ‘views of counsel, at least in writing,’ should be obtained.” 397 F.3d at 120 .

Like the Montgomery panel, I have no doubt that Ameline supports the right of counsel to have its written views considered on…

with whom BERZON, Circuit Judge, joins, concurring:

I file this separate concurrence only to express my disagreement with Judge O’Scannlain’s criticism of United States v. Montgomery, 462 F.3d 1067 (9th Cir.2006). Because the “Ameline remand” is entirely judge-fashioned, there are no preexisting rules which govern the procedures to be followed on such a remand. Montgomery’s interpretation of Ameline’s requirement imposes no more than that notice and an opportunity to be heard be given— due process-like requirements — which we have imposed in a wide variety of contexts. See, e.g., Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198 (9th Cir.1999) (holding that due process requires that an attorney be given notice and an opportunity to be heard before sanctions can be imposed against him). Given the consequences at stake, I do not believe that requiring “sentencing judges to notify counsel” places an undue “burden” upon them or, in any manner, “misapprehends the proper role of the judge.”

485 F.3d 1053 UNITED STATES of America, Plaintiff-Appellee, v. Blaine Travis FIFIELD, Defendant-Appellant. No. 06-30171. United States Court of Appeals, Ninth Circuit. Submitted March 8, 2007 * . Filed May 7, 2007. John Rhodes, Assistant Federal Defender, Missoula, MT, for the defendant-appellant. Eric B. Wolff, Assistant United States Attorney, Billings, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR 03-0042 DWM. Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges. Opinion by Judge TASHIMA; Concurrence by Judge O'SCANNLAIN; Concurrence by Judge TASHIMA TASHIMA, Circuit Judge: 1 On his first appeal, Blaine Travis Fifield was granted a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). On remand, the district court declined to revisit Fifield's sentence. Fifield again appeals, arguing that the district court erred by failing to request his views regarding an appropriate sentence under the advisory guidelines regime before making its decision. We have jurisdiction over the appeal pursuant…