August 31, 2005
Because Ameline was not quite in time
The Ninth Circuit today, at the end of its opinion in US v. Sanders, No. 03-50471 (9th Cir. Aug. 31, 2005) (available here), resolved a little issue about the "limited remand" Booker plain error approach that earlier this year had the Second Circuit all worked up. The issue concerns how to remand when the original sentencing judge has retired or died and so is unavailable to "quickly and accurately decide whether he or she would have issued a materially different sentence had the guidelines been advisory."
The Second Circuit faced the issue in United States v. Garcia, 413 F.3d 201, 226 (2d Cir. 2005), and adopted a modified limited remand approach. Here's what the Ninth Circuit says about this issue, which it left open in Ameline, in its Sanders decision today:
We believe the Garcia modified limited remand approach is not limited in any material sense. Accordingly, rather than obscure the issue with misleading terminology, we elect to vacate the original sentence and remand for a full resentencing hearing. Because the purposes underlying Ameline are frustrated by the subsequent unavailability of the original sentencing judge, we hold that under these circumstances the appropriate response to Booker error is to vacate the original sentence and remand for a full resentencing hearing.
August 31, 2005 at 02:22 PM | Permalink
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