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February 9, 2005

Working through the process that is due

The Ninth Circuit's latest work in Ameline (basics here) is notable for its plain error discussion, especially the closing statement that "it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime," slip op. at 17 (emphasis in original), and also the failure to substantively engage with the Rodriguez from the Eleventh Circuit and the raging plain-error circuit court battles.  But the Ameline court's discussion of "basic procedural fairness" is even more remarkable, especially because the court drops a tantalizing footnote concerning burden of proof issues I have been discussing of late here and here and here.

In the course of discussing the factual dispute in Ameline over the amount of drugs in the offense, the Ninth Circuit speaks broadly about the need to "ensure fairness and integrity in the sentencing process," and it observes that "[a]lthough the PSR is essential to the sentencing process, there is nothing sacrosanct about the information contained in the report."  The court in Ameline also clarifies that, even post-Booker, a defendant's factual objection to the PSR means the sentencing court "may not simply rely on the factual statements in the PSR:"

This conclusion follows from the interplay between Federal Rule of Criminal Procedure 32(i)(3)(B) and the rule we adopted in Howard that the party seeking to adjust the offense level bears the burden of proof.  This conclusion also properly accommodates the due process concern that a defendant be sentenced only on the basis of reliable information.  When a defendant makes a timely specific objection to the factual accuracy of an assertion in the PSR, Rule 32(i)(3)(B), even after Booker, requires the district court to resolve the factual dispute.

But, when it comes to the potentially critical issue of what burden of proof may apply to disputed facts post-Booker, the Ameline court has this somewhat confusing punt in footnote 7:

In Howard, we also held that factual disputes under the Sentencing Guidelines should be decided by a preponderance of the evidence.  See Howard, 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.

Relatedly, while the Ameline court has us all thinking about "basic procedural fairness" and also about how best to "ensure fairness and integrity in the sentencing process," I am happy to be able to share an important (and amusing) commentary I recently received from attorney Jim Felman.  Entitled "The Need for Procedural Reform in Federal Criminal Cases" and available for download below, Jim uses a hypothetical conversation between a federal criminal defense attorney and a civil attorney to spotlight why he thinks the Federal Rules of Criminal Procedure applicable to sentencing proceedings "are in need of at least two specific reforms."

Download felman_on_procedural_reform.rtf

February 9, 2005 at 02:59 PM | Permalink


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I cannot open the new opinion on
US v. Ameline, No. 02-30326, 9th Cir.
Feb 9, 2005. I would very much like
to print this case. Help, my computer
keeps locking up.

Posted by: Shirley | Feb 9, 2005 9:06:41 PM

I cannot open the new opinion on
US v. Ameline, No. 02-30326, 9th Cir.
Feb 9, 2005. I would very much like
to print this case. Help, my computer
keeps locking up.

Posted by: Shirley | Feb 9, 2005 9:07:16 PM

I appreciate the professor's comments that there is more to Ameline II than the plain error analysis. I think an important part is that the judge (or perhaps a jury with the burden now being on the prosecution rather than the defense overcoming the presumption of the PSR correctness by what standard is unclear)must determine a guideline range because finding a proper guideline is necessary to the Booker sentencing process. I have a case awaiting sentencing with no quantity in the indictment or the verdict despite my objections asking that it be decided by the jury. There is a severe dispute as to quantity. It appears at least I get an evidentiary hearing on the quantity, i.e. the judge must determine a proper Guideline range, not just accept the PSR estimate (which, of course, just follows the government's theory). Does everyone agree I am entitled to at least an evidentiary hearing? But what about a jury trial on the issue? Should I argue for one or because of Jackson say the government has to start all over?

Posted by: Michael L. Crowley | Feb 11, 2005 10:13:22 AM

If there are mandatory minimums that would be triggered, you have a great Harris issue because the court rejected your request to have the jury determine weight. In general, however, I'd think you'd be entitled to an evidentiary hearing if the judge plans to make specific findings about weight and to use that to calculate a guidelines range as a starting point. If the judge says you don't get the hearing, you should pin him or her down to say the drug weight will not be a factor in determining the sentence. That way, you can argue on appeal that the lowest guidelines range for the lowest weight of the drug involved would have been the "reasonable" sentence and that by imposing a higher one, the judge acted unreasonably. Of course, the judge is going to consider weight but by forcing his or her hand you'll either force the hearing or make a strong record on appeal that it was unfair to deny you one.

You should argue that any findings should be made beyond a reasonable doubt (unless you think the judge would simply apply that standard to take away the appellate issue, in which case you'd just want to object to the judge's use of the lower standard after he or she's made the findings).

I'd think the issue of whether you're entitled to a jury trial would depend on whether weight is an "element" or a "sentencing factor." You should argue it's the former to preserve your sixth amendment claim and, as noted above, still argue that if it's a sentencing factor, then Harris is no longer good law.

Just my quick thoughts.

Posted by: Alex E. | Feb 11, 2005 3:32:09 PM

I am a student that recently was able to obtain a reversal in the 9th. On appeal, two arguments were made: 1) IAC; 2)failure of court to conduct an evid. hrng. The 9th, finding my argument not exceptional, declined to entertain the IAC, deferring to the dist.ct. under 2255. Notwithstanding the fact that I presented facts establishign a significat deficient account of loss by the gov, the 9th failed to address the issue and took the easy way out, vacating & remanding under Blakely.
I have since filed a request to the dc, relying on Ameline, to permit the def. to plead anew as a result of Rule 11(c) error - the d.c. failed to inform def. of the gov's correct burden of proof. Moreover, to escape a 2255 requirement, (custodial), I am also endeavoring to move the court under Rule 11(d) to permit the def. to withdraw plea before re-sentencing.
At the initial sent hrng. the dc relied upon def. stmt. set forth in PSR regading amount of loss to enhance sentence under U.S.S.G. 2F1.1(b). My argument to dc to disregard this stmt. was predicated on fact that statement was the result of IAC, (counsel informed def. that he had agreement with AUSA that stip. in P/A regarding amount of loss was not binding)
With Booker now the law of land and the 9th's failure to address burden of proof question in Ameline II, it would appear that under Amerline & Blakey, in consideration of Booker and my IAC claims, if the dc is going to enhance the def. sentence for loss, it would appear that the gov will be required to prove loss beyond a reas. doubt.
Any comments will be greatly appreciated.

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