February 9, 2005
The 9th Circuit uses Ameline to speak on plain error (and other issues)!
The Ninth Circuit has jumped into the plain error scrum (highlights here and here) through a new opinion in US v. Ameline, No. 02-30326 (9th Cir. Feb. 9, 2005) (available here). Here are some highlights:
In light of the Supreme Court's recent decision in United States v. Booker, 125 S. Ct. 738 (2005), we granted appellant Alfred Ameline's petition for rehearing to reconsider our decision in United States v. Ameline, 376 F.3d 967 (9th Cir. 2004)....
Our original opinion was consistent with Booker's holding that the Sixth Amendment as construed in Blakely applies to the Sentencing Guidelines. It was at odds, however, with the Court’s severability remedy that eliminated the mandatory nature of the Sentencing Guidelines. Applying Booker to the present case, we conclude that (1) the Court’s holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered; (2) because Ameline did not raise a Sixth Amendment argument at the time of sentencing we review for plain error; (3) Ameline's sentence violated the Sixth Amendment and constituted plain error; and (4) the error seriously affected the fairness of Ameline's proceedings. Accordingly, we vacate Ameline's sentence and remand for resentencing.
In addition, the Ameline panel also decided to use this case as a vehicle to discuss some post-Booker procedural issues as well.
To provide guidance to the district court in resentencing Ameline, we also address Ameline's challenge to the district court's ruling that he bore the burden of disproving the amount of methamphetamine that the Presentence Report ("PSR") attributed to him. In addressing this issue, we conclude that Booker did not relieve the district court of its obligation to determine the Sentencing Guidelines range for Ameline's offense of conviction. In determining the guideline range, the district court must still comply with the requirements of Federal Rule of Criminal Procedure 32 and the basic procedural rules that we have adopted to ensure fairness and integrity in the sentencing process. Although the district court is not bound by the Sentencing Guidelines range, basic procedural fairness, including the need for reliable information, remains critically important in the post-Booker sentencing regime.
February 9, 2005 at 12:56 PM | Permalink
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The perplexing part of Ameline is footnote 7. The panel babbles on for 24 pages, purporting to give the district court guidance on what to do on remand, yet declines to instruct the district court on what evidentiary standard to apply when making factual findings. From the standpoint of a district court judge, that was the most important question in the case. Thanks for nothing.
Posted by: Inside View | Feb 9, 2005 1:45:58 PM
[Based on a quick skim] The jury found Ameline possessed less than 2.5 grams of meth, for which the statutory maximum sentence was 20 years. The district court found he possessed ~1600 grams. He was sentenced to ~14 years, which exceeded the guideline maximum. Error? Yes. Plain? Yes. Substantial rights? The Ninth Circuit concludes, "Ameline was deprived of his right to have a jury find beyond a reasonable doubt the quantity of drugs attributable to him" which leaves "little doubt that the constitutional error in sentencing affected Ameline's substantial rights." Huh? Did I miss something? I thought Booker was clear that judicial enhancements based on preponderance of the evidence were fine. Whether we should use a reasonable doubt standard is another question, but unless I'm wrong, has the Ninth Circuit just gone there? Like I said, I only just skimmed the opinion but that jumped out at me. It also disappoints me when a Circuit does not acknowledge agreement/disagreement with its sister circuits (I know they cite the 4th, but there is so much more out there). Our blogfather mentioned enjoying watching the evolution of the common law and I only think that process is inhibited when courts operate in a vacuum merely because they can. Regardless of whether the Ninth is right on plain error, I find their analysis sorely lacking and completely unresponsive to the arguments made by the 11th.
Posted by: AnonClerk | Feb 9, 2005 1:47:13 PM
In response to AnonClerk, yes, you did miss something, albeit the opinion isn't a model of clarity. The reason the panel concluded that Ameline had been deprived of his constitutional right to have the facts determined by a jury BARD is because his sentence was "imposed under the mandatory Sentencing Guidelines." See last paragraph of opinion.
Posted by: Inside View | Feb 9, 2005 2:47:20 PM
Whether his sentence was imposed under the mandatory guidelines is a separate issue from whether any drug quantity attributed to him must be found by a jury. If the Ninth believes his substantial rights were violated simply because the sentence was imposed when the guidelines were mandatory, fine, but that is not what I was referring to. If you look at the Court's analysis of the third prong (pg 15), it refers to "his right to have a jury find beyond a reasonable doubt the quantity of drugs attributable to him." My point was there is no such right; that statement is simply wrong. What the district court did is completely fine post-Booker. Just because the jury only finds him guilty of possessing <2.5 grams in no way prevents the judge from finding he possessed 1600 grams (which raises his base level under the "advisory" guidelines) and sentencing him accordingly. If III.C. is merely saying his substantial rights were affected because the guidelines were mandatory, then I welcome someone pointing out where it makes that point. To the contrary, I think the 9th fell into the same mistake the 4th made. The error (see pg 14) was not extra-judicial enhancements. The error was the mandatory nature of the guidelines. For the same reason, the remedy is not asking whether the outcome would be different without the extra-judicial enhancements; the remedy is asking whether the defendant can meet his burden of showing by a reasonable probability that the outcome would be different now that the guidelines are not mandatory. The court, at least not to my satisfaction, never explains why the outcome will be different upon remand. If it is enough to say "because the judge could do something different" then every single sentence rendered under the guidelines, Apprendi error or not, should be remanded.
Posted by: AC | Feb 9, 2005 3:29:29 PM
I respectfully disagree. This defendant was sentenced under a mandatory guidelines scheme. As Blakely and Booker make clear, a defendant sentenced under a mandatory guidelines scheme has a constitutional right to have the sentencing facts determined by a jury BARD. Accordingly, Ameline's Sixth Amendment rights were violated. The Ninth Circuit got that part correct.
As for whether the outcome might be different on remand, the answer is yes. On remand, the court might find a lower drug quantity, or no weapon enhancement, once the burden of proof is properly allocated, and the proper evidentiary standard--whatever that is--is applied. In addition, the guidelines will be advisory only on remand, so the court might select a lower sentence.
Your post does highlight a key question Ameline II did not resolve, namely, whether nearly every defendant on direct review is entitled to be resentenced --because the sentencing court mistakenly believed the Guidelines were mandatory-- or if remand is required only if the defendant's sentence actually was enanced on the basis of disputed facts. Ameline disputed the sentencing facts, so the Circuit did not have to reach that question.
The "truly exceptional" language in Ameline II suggests the panel was envisioning a circumstance where a defendant could not possibly receive a lower sentence on remand. For instance, if he was sentenced to the statutory mandatory minimum. However, subsequent Ninth Circuit panels will have to flesh out what was intended, or if the "truly exceptional" language will quickly be relegated to the dictum scrappile.
Posted by: Inside View | Feb 9, 2005 4:24:07 PM
"As Blakely and Booker make clear, a defendant sentenced under a mandatory guidelines scheme has a constitutional right to have the sentencing facts determined by a jury BARD. Accordingly, Ameline's Sixth Amendment rights were violated. The Ninth Circuit got that part correct."
Agreed - as to pre-Booker. But in the post-Booker world, there is nothing stopping a court from doing exactly what the court did, to the extent the 9th found otherwise, I think it runs afoul of Booker. When resentencing as long as the district court's sentence is "reasonable" and less than 20 years (the stat. max) there is no need for a reasonable doubt finding.
As to your second paragraph, I think we just view the burden on the defendant differently. I completely agree that the court "might" impose a different sentence for a variety of reasons, but for me, "might" does not equal "reasonable probablity." Does this mean most defendants will lose under plain error? Yes. Does that mean I agree with the result? No. But until the Court changes its plain error standard, I think it's the right result (on the other hand, I think the government loses harmless error review in the same way because the burden is on them). I came to that conclusion in part because it seems like a black and white proposition. If a defendant can carry his burden by showing he might receive a different sentence, then I cannot envision a case not being remanded, save the situation where the court said on the record it would impose the sentence even if the guidelines weren't mandatory. But if the Court intended such a result, why not just say so? Granted placing importance on silence is sketchy. I'm not convinced of my conclusion, but I've struggled to come up with a situation where the 4th and 9th would not remand a case under plain error where there was an Apprendi violation.
Posted by: AnonClerk | Feb 9, 2005 5:39:24 PM
One more thing, I still haven't had the chance to sit down and read Ameline closely, and I apologize for discussing it without having done so, but I haven't read anything on the site that doesn't jive with what I took away from it.
Posted by: AnonClerk | Feb 9, 2005 5:42:37 PM
I'm afraid the Ameline reference to BARD seems contingent on the phrase "given the mandatory nature of the Guidelines," slip op. at 14. Elsewhere (the infamous fn. 7), the Circuit expressly weasels on the standard of proof question, even throwing in the hazy clear-and-convincing standard for extra confusion. The Montana district coiurt, of course, completely screwed the pooch by requiring Ameline to DISprove the PSR's drug quantity. Bless those Montana guys, so many good 9th Cir. rulings begin with them!
Posted by: Ben Pesta | Feb 9, 2005 7:26:16 PM