Sunday, April 03, 2005

Case o' The Week: Gunning for Ameline III

This otherwise insignificant little opinion may have a big impact on Booker remands and the pending Ameline III en banc decision. See United States v. Gunning, __ F.3d __, 2005 WL 2005 WL 730298 (9th Cir. Mar. 31, 2005), available here. The decision has an interesting discussion on allocution, resentencing on remand, and "plain error" review.

Players: Judge Fernandez’s thesaurus, District Court Judge Jack E. Tanner.

Facts: Stephen Gunning was convicted of wire fraud, appealed, the Ninth reversed, he was remanded and resentenced, appealed again, and won again. Gunning, 2005 WL 2005 WL 730298 at *1. After the original remand, the district court did not permit full allocution before sentencing. Id. The district court also did not specify a restitution repayment schedule, but delegated that task to the BOP. Id.

Issue(s): (1) Does a defendant have the right to full allocution at sentencing, if the remand isn’t specifically limited? (2) Can a district court delegate setting a restitution repayment schedule, to Probation or the BOP? Id.

Held: (1) "We have some sympathy for the government’s argument that the failure to accord Gunning his allocution right was harmless in this case. However, our precedents are quite clear: when a district court could have lowered a defendant’s sentence, we have presumed prejudice and remanded, even if we doubted that the district court would have done so . . . Thus, we must remand." Id. at *3 (emphasis in original) (citations omitted).

(2) "[T]he district court simply does not have the authority to delegate it own [restitution] scheduling duties – not to the probation office, not to the BOP, not to anyone else." Id. at *4.

Of Note: Steve Hubachek and Tony Gallagher have recently done a great job in arguing Ameline III – the Ninth Circuit en banc case on Booker remands. Oral argument available here. Gunning’s broad language on the need for full allocution without a showing of prejudice undercuts the en banc panel’s infatuation with the "quick look" approach for Booker remands – a procedure whereby the district court opines on whether Booker would affect the sentence, and does so in the absence of the defendant.

The Gunning opinion has good, broad language about general remands for resentencing that will be useful for the Booker remands that will be soon hitting the district courts. Id. at *2-*3. It also is noteworthy that, although there was no objection about the lack of allocution in the district court, this oddly does not seem to be a plain error review case. Id. at *3 n.6. Judge Fernandez speculates that this may be because the error is "so plainly plain that it falls within the category of errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice." Id. (quotation and citation omitted). This possible category of plain error review was discussed at length in the Ameline III en banc, and Gunning may bear on that ultimate decision.

How to Use: As noted above, Gunning could be an important case for the Ameline III en banc case and for Booker remands. The case is also interesting for its insistence that the district court – not Probation or the BOP – sets the restitution repayment schedule. Given the unholy alliance between Probation and FLU (the Financial Litigation Unit of the USAO), a sympathetic judge may often set a more-humane schedule than that dictated by a P.O. Use Gunning with a factual showing of the client’s indigency to get a favorable restitution payment schedule set at sentencing.

For Further Reading: Fernandez writes, "When this case was previously before us, we had occasion to expatiate on the meaning of that language . . . ." Id. at *4. For those, like me, who don’t know what that means:

expatiate \ik-SPAY-shee-ayt\, verb: 1. To speak or write at
some length; to be copious in argument or discussion; to enlarge. 2. To range at large, or without restraint. See full definition here.
Steven Kalar, Senior Litigator ND Cal FPD, website available here.


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