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June 1, 2005

Ninth Circuit issues Ameline!

Thanks to this post at How Appealing, I see news that the Ninth Circuit has finally issued its en banc Booker plain error decision in Ameline.  According to Howard's report, the decision runs a total of 103 pages, and "the court, through a seven-judge majority, agrees to apply the Second and Seventh Circuits' limited remand approach."

UPDATE:  Here is a link to the Ameline decision, but it is giving me trouble (and the document is in a form now precluding cut-and-paste).  Here's a quick transcription of the key paragraph from the introduction:

[W]e hold that when we are faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory....  In essence, we elect to follow the approach adopted by the Second Circuit in US v. Crosby, 397 F.3d 103 (2d Cir. 2005).

ANOTHER UPDATE: A quick scan suggests that Ameline majority opinion ends with a seemingly coy discussion of the burden of proof at sentencing.  I highly encourage readers to comments on this or any other aspect of the decision while I head for a plane.

June 1, 2005 at 01:41 PM | Permalink


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It's interesting to look back now that the dust has settled. When the 4th and 6th Circuits started things off, it appeared their approach would carry the day; conversely, the 11th Circuit was viewed as the outlier. Now the 11th is in the majority/plurality, and the 4th leads the minority.

It would be nice to see the SCt settle it once and for all, but it might be more fitting to have the split ride off into the sunset forever memorializing those crazy few months where everyone was checking Sentencing Law & Policy eight times a day.

Posted by: Anonemous | Jun 1, 2005 3:20:10 PM

Ameline provides at least some partial remedy for a defendant. However, it is unclear as to how the court wants the district to resolve the obvious tension between resolving factual disputes under the old preponderance of evidence standard and Booker. If the court is supposed to use the advisory guidelines but resolve factual disputes, how can the court consider facts that were not agreed to by the defendant nor found true by the jury. The court cannot do an end run around Booker and this inherence conflict in what burden should be alloted is not resolved. Is an unconstitutional advisory base offense okay? Is that what the court is saying? I hope not!!! Please email me if you have any insight or cases. Some DC courts have said the standard is beyond a reasonable doubt but I have seen many others just go with the preponderance of evidence standard.

Posted by: Ronald Richards | Jun 1, 2005 8:37:24 PM

Honestly, Prof. B, I can't see what's "coy" about the Court's holding that its 1990 (Guidelines-era) opinion controls how the district court will resolve disputed facts, and its remark that "The fact that the Sentencing Guidelines have become discretionary following Booker does not alter this analysis."
That seems like the opposite of coy. What is it that you have in mind?

Posted by: areader | Jun 2, 2005 4:56:44 PM

Areader, it is coy because although they provide that the government the burden of proof as stated under Howard, they fail to state whether or not the burden of proof is now beyonnd a reasonable doubt or it is just preponderence of the evidence. They conveniently omit that analysis, which I would agree with the professor is rather "coy."

Posted by: Laura | Jun 2, 2005 10:55:24 PM

Areader, It is coy because although the court says that the burden of proof will be on the government as stated in Howard, the majority conveniently omits whether or not the burden of proof is now beyond a reasonable doubt or by a preponderence of the evidence. This decision on the part of the majority is in fact, "coy."

Posted by: Laura | Jun 2, 2005 10:56:45 PM

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