Booker: First Ninth Decision, Ameline
In a very good decision, Judge Paez revisits an earlier opinion and uses it as a vehicle for the first Ninth Circuit Booker discussion in Ameline (available here). Here are my quick notes on the case, see also Professor Berman's thoughtful summary at his web page (which includes a link to the opinion). This is an important case for the defense, and should be used immediately for post-Booker sentencings.
Ameline Highlights:
1. Almost every case will survive plain error review on appeal. United States v. Ameline, No. 02-30326, 17 (Feb. 9, 2005) ("Accordingly, it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime. This is not such a case.")
2. A district court must engage in a guideline analysis, but that is only one part of the Section 3553(a) inquiry. Id. at 18. Previously impermissible departures now can be considered. Id. ("Thus, under the post-Booker discretionary sentencing regime, the advisory guideline range is only one of many factors that a sentencing judge must consider in determining an appropriate individualized sentence. For instance, the Sentencing Guidelines' limitations on the factors a court may consider in sentencing -- e.g., the impermissible grounds for departure set forth in Section 5K2.0(d) -- no longer constrain the court's discretion in fashioning a sentence within the statutory range."
3. The court must consider the 3553(a) factors, such as "the nature and circumstances of the offense and the history and characteristics of the defendant." Id. at 18-19 ("In addition, the court must consider the relevant Sentencing Commission policy statements and the need to avoid unwarranted sentencing disparities and provide restitution to victims.")
4. To permit adequate appellate review, the court must provide an explanation for its sentencing decisions. Id. at 19.
5. The baseline rules for PSR's and guideline calculations, in Federal Rule of Procedure 32, remain in place. Id. at 20.
6. The government bears the burden of proof for any fact that the sentencing court would find necessary to determine the base offense level. Id. at 20.
7. There is a possibility that the higher due process protections of a higher standard of proof may apply -- left unanswered here. Id. at 20 & n.7.
8. Facts in the PSR cannot be treated as presumptively accurate. Id. at 22.
In general, Ameline is everything the defense could hope for in the Ninth. It is a great case to throw at Probation, when they refuse to include 3553(a) factors in the PSR. It will also be a great case for judges who are stuck in the guideline rut. Finally, use Ameline with the USAO to argue that it should bargain outside of the guideline range.
Steven Kalar, Senior Litigator ND Cal
Ameline Highlights:
1. Almost every case will survive plain error review on appeal. United States v. Ameline, No. 02-30326, 17 (Feb. 9, 2005) ("Accordingly, it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime. This is not such a case.")
2. A district court must engage in a guideline analysis, but that is only one part of the Section 3553(a) inquiry. Id. at 18. Previously impermissible departures now can be considered. Id. ("Thus, under the post-Booker discretionary sentencing regime, the advisory guideline range is only one of many factors that a sentencing judge must consider in determining an appropriate individualized sentence. For instance, the Sentencing Guidelines' limitations on the factors a court may consider in sentencing -- e.g., the impermissible grounds for departure set forth in Section 5K2.0(d) -- no longer constrain the court's discretion in fashioning a sentence within the statutory range."
3. The court must consider the 3553(a) factors, such as "the nature and circumstances of the offense and the history and characteristics of the defendant." Id. at 18-19 ("In addition, the court must consider the relevant Sentencing Commission policy statements and the need to avoid unwarranted sentencing disparities and provide restitution to victims.")
4. To permit adequate appellate review, the court must provide an explanation for its sentencing decisions. Id. at 19.
5. The baseline rules for PSR's and guideline calculations, in Federal Rule of Procedure 32, remain in place. Id. at 20.
6. The government bears the burden of proof for any fact that the sentencing court would find necessary to determine the base offense level. Id. at 20.
7. There is a possibility that the higher due process protections of a higher standard of proof may apply -- left unanswered here. Id. at 20 & n.7.
8. Facts in the PSR cannot be treated as presumptively accurate. Id. at 22.
In general, Ameline is everything the defense could hope for in the Ninth. It is a great case to throw at Probation, when they refuse to include 3553(a) factors in the PSR. It will also be a great case for judges who are stuck in the guideline rut. Finally, use Ameline with the USAO to argue that it should bargain outside of the guideline range.
Steven Kalar, Senior Litigator ND Cal
posted by Steve Kalar at 2/09/2005 11:44:00 AM
2 Comments:
Ameline is a fantastic case, it states in there explicitly that only the 'truly expectional' case will NOT require a resentencing under the post-Blakely Booker regime.
For more on Blakely Booker and criminal law topics in general check out this site:
http://crimelaw.blogspot.com/
Chip Venie
chipesq@hotmail.com
Ameline is a fantastic case, it states in there explicitly that only the 'truly expectional' case will NOT require a resentencing under the post-Blakely Booker regime.
For more on Blakely Booker and criminal law topics in general check out this site:
http://crimelaw.blogspot.com/
Chip Venie
chipesq@hotmail.com
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