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June 2, 2005

Ameline in less time

One of my kind cyber-friends sent me a more user-friendly version of the Ninth Circuit's Ameline decision (basics here).  This version, available below, should provide for quicker downloading and also enables cutting-and-pasting. Even in this user-friendly version, the whole opinion is still 103-total pages.  But the majority's work might be fairly summarized as:  See US v. Crosby, 397 F.3d 103 (2d. Cir. 2005).  Ditto! 

The one Ameline opinion that is most worthy of a very close read comes from Judge Wardlaw.  The second part of her opinion includes an crackling account of why "Booker is a signal event in the development of the law," and the first part of her opinion has this notable sentence assailing the majority's "limited remand" approach to plain error:

[W]hile at first blush it may be enticing to an overworked and overscrutinized bench to rid ourselves of hundreds, perhaps thousands, of appeals, we may create much more work for ourselves down the road than if we had simply done it right in the first place.

Another way to get Ameline highlights is from press coverage provided by The Recorder and the Los Angeles Times and the APThe Recorder story includes the interesting data tidbit that there are "about 500 [Booker] appeals in limbo at the 9th Circuit, with as many as 200 more in the pipeline, according to the clerk's office."

Download Ameline.pdf

June 2, 2005 at 02:12 AM | Permalink


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I am in Santa Maria covering the Michael Jackson trial for NBC News. The Ameline case is of course potentially disasterous for pipeline defendants. Here is my situation with numerous clients in the pipeline. Prior to Ameline, the 9th had vacated a life sentence my client received for methamphetamine. Prior to trial, he requested the jury determine specific drug quantity attributed to him. The DC only allowed the jury to find threshold amounts. Now, I am claiming his Sixth Amendment rights were violated and there has to be a remedy. Plain error is not an issue. It is harmless error. The government is now contending that the court can give him life under the advisory guidelines. He was better off post Blakely PRE BOOKER. I contend the court is limited to a level 32 which reflects just the threshold amounts. How does a court ignore a pretrial request to have the jury determine specified drug quantity now? Even in the 9th, the standard in some cases is higher than preponderance if there is a gross departure from the verdict. The DC must reconcile the tension between the Booker substantive holding and the timely assertion by the defendant for a jury finding. Otherwise, a judge made finding to take a case from 10 years to life would simply nullify Blakely where Scalia gave the example, plead to 5KG and be sentenced to 100KG. I can't imagine who this decision has turned into a defendant's worse nightmare. They are actually in worse shape now than before. There must be some reward to the defendants like this one who timely asserted the drug quantity jury requests. Please write or post some comments on these pipeline defendants, hurry!!!

Posted by: Ronald Richards | Jun 2, 2005 7:56:53 AM

FOR DRUG QUANTITY: These cases and this passage can still save your client a preponderance of the evidence review. The 9th Circuit shortly before Blakely ruled the following on January 24, 2004 in U.S. v. Thomas 355 F.3d 1191, *1201 -1202 (C.A.9 (Cal.),2004):

Here, in the absence of any proof of quantity, Thomas' statutory maximum sentence should have been 20 years' imprisonment. See 21 U.S.C. § 841(b)(1)(C). Although his 120-month sentence was below the statutory maximum, the finding that he possessed more than 50 grams of cocaine base exposed him to a maximum sentence of life imprisonment. See id. § 841(b)(1)(A). Sentencing Thomas for possession of 50 grams or more was therefore error. In addition, by requiring a mandatory minimum imprisonment of ten years, id., and by increasing his base offense level under the Guidelines, see U.S.S.G. § 2D1.1(c) (2001), the error was clearly harmful. See Velasco-Heredia, 319 F.3d at 1086.
The question therefore becomes whether on remand the district court must empanel a jury to determine drug quantity beyond a reasonable doubt. As we recently held *1202 in Banuelos, "where [a drug quantity] finding exposes the [defendant] to a higher statutory maximum than he otherwise would face, the finding must be made by the jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt." 322 F.3d at 702. Thus, rather than empaneling a jury, Banuelos indicates that the proper approach would have been for the district judge to determine drug quantity beyond a reasonable doubt after informing Thomas that he had the right to have a jury determine drug quantity and that he was waiving the right to have a jury do so. Id. at 705-06 & 706 n. 4.
In Banuelos, the failure to elicit an admission from the defendant regarding drug quantity could not be corrected by a drug quantity determination on remand. The court explained that
[b]ecause Banuelos challenged only his sentence, and not his conviction, we are required to remand the case with instructions to the district court to resentence Banuelos "subject to the maximum sentence supported by the facts found by the [fact-finder] beyond a reasonable doubt." ... Banuelos admitted beyond a reasonable doubt that he conspired to distribute an unspecified amount of marijuana. Thus he was properly convicted of the general offense set forth in § 841(a)(1)--the offense charged in the indictment and the only offense for which there was a factual basis for conviction, because Banuelos did not allocute to drug quantity at the change of plea hearing or admit to drug quantity in a written plea agreement. Accordingly, the maximum permissible sentence on remand is five years in prison, pursuant to 21 U.S.C. § 841(b)(1)(D).
Banuelos, 322 F.3d at 706-07 (citations omitted) (quoting United States v. Nordby, 225 F.3d 1053, 1062 (9th Cir.2000), overruled in part on other grounds by Buckland, 289 F.3d at 568); see also Velasco-Heredia, 319 F.3d at 1086-87 (remanding for resentencing for an unspecified amount of marijuana after a bench trial in which drug quantity was not proved beyond a reasonable doubt); United States v. Jordan, 291 F.3d 1091, 1097 (9th Cir.2002) (remanding for resentencing for an unspecified amount of methamphetamine after a jury trial in which drug quantity was not proved beyond a reasonable doubt).
Here too, Thomas admitted beyond a reasonable doubt that he knowingly possessed cocaine base with an intent to distribute. He did not, however, admit to possessing any specific quantity, nor did he knowingly waive his right under Apprendi and Buckland to have a jury determine quantity beyond a reasonable doubt. Absent a waiver of Thomas' right to a jury determination, the district judge cannot determine any particular drug quantity that would affect the maximum statutory sentence to which Thomas is exposed. See Banuelos, 322 F.3d at 705 n. 3. Thus, because Thomas challenged only his sentence, and not his conviction, we must remand with instructions to resentence Thomas based on an unspecified quantity of cocaine base.

U.S. v. Thomas 355 F.3d 1191, *1201 -1202 (C.A.9 (Cal.),2004)

Both Thomas and Banuelos can save you. It was unclear how they could only mean threshold amounts if a defendant requested jury findings. Even in Ameline after Booker, the court sites the following passage for higher burden's of proof:

FN7. In Howard, we also held that factual disputes under the
Sentencing Guidelines should be decided by a preponderance of the evidence. 894 F.2d at 1090. We further have held that, in certain circumstances, the applicable burden of proof at sentencing may be clear and convincing evidence, see United States v. Johansson, 249 F.3d 848, 853-54 (9th Cir.2001), or even reasonable doubt. See United States v. Thomas, 355 F.3d 1191, 1202 (9th Cir.2004). Whether the Booker majority remedial opinion affects the standard of proof articulated in these cases is an issue we need not address at this time.

U.S. v. Ameline 400 F.3d 646, *657 (C.A.9 (Mont.),2005)

Therefore, counsel needs to diligently assert these issues as eventually they will have to not allow the same old rubber stamping of the PSR, otherwise, it would be like Blakely/Booker never happened. Email ron@ronaldrichards.com

Posted by: Ronald Richards | Jun 2, 2005 8:19:33 AM

Unfortunately, in the last line before the conclusion, the new Ameline refers us to Howard for the burdens of proof to use without again mentioning the exceptions as it did in Ameline II. Regardless of whether it was intentional or not, it will cause problems.

Posted by: Greg Silvey | Jun 2, 2005 11:30:41 AM

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