Case o' The Week: 3rd Time Not a Charm, in Ameline en banc

Saving its own resources by unceremoniously kicking appeals back to the district court, the Ninth adopts the Second Circuit's economic, expedient, and arguably unconstitutional "quick look" procedure for Booker pipeline cases. See United States v. Ameline, __ F.3d __, Slip. op. at 1 (9th Cir. June 1, 2005) (en banc), available here. This disappointing decision demands a united front from the defense bar, with systematic allocution challenges (among others) to the Ninth's "quick look" option.

Players: Terrifically hard-fought case by Defender attorneys Steve Hubacheck of San Diego, and Anthony Gallagher of Great Falls, Montana. Kudos to Judge Wardlaw for her blunt, honest, and well-reasoned dissent.

Facts: Ameline pled guilty to conspiring to distribute meth, but didn’t admit the amount. United States v. Ameline, __ F.3d __, Slip. op. at 4 (9th Cir. June 1, 2005) (en banc). He disputed the government’s claim that he was responsible for 1 ½ kilos – and also disputed a PSR bump for firearms. Id. The court treated the PSR as "prima facie" evidence of the allegations, id. at 5, and found the drug and gun enhancements by a preponderance of evidence, id. at 6. Ameline received a mid-range sentence of 150 months.

Issue: "Left unresolved by Booker is the question of what relief, if any, is to be afforded to a defendant who did not raise a Sixth Amendment challenge prior to sentencing." Id. at 2.

Held: "As described in more detail below, we 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. If the district court responds affirmatively, the error was prejudicial and failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. The original sentence will be vacated by the district court, and the district court will resentence the defendant. If the district court responds in the negative, the original sentence will stand, subject to appellate review for reasonableness. . . . In essence, we elect to follow the approach adopted by the Second Circuit in [ ] Crosby . . ." Id. at 3 (internal citation omitted).

Of Note: The Ninth lays out the process for remand: first, Ameline applies to all cases pending on direct appeal, including cases where the briefs do not raise a Booker issue. Id. at 27. Next, there’s an opt-out provision for the defendant. Id. at 28. If the Ninth can’t determine plain error, it will remand for the district court to determine whether the sentence would have been "materially different" in an advisory system. Id. at 28. At minimum, counsel should be permitted to submit their views, in writing. Id. A district court that finds the decision would not have been materially different in an advisory system should make that record, and face an appeal for "reasonableness." Id. If the sentence would have differed materially, the original sentence shall be vacated and the court should resentence with the defendant present. Id. at 29. Or, everyone can simply agree to proceed directly to a resentencing proceeding. Id. at 29 & n.10.

Ameline’s treatment of the burden of proof at sentencing is discouraging: "In resolving the factual dispute, the district court must continue to apply the appropriate burdens of proof, consistent with Howard." Howard embraced the "preponderance" standards for Guideline adjustments and departures. See United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Note, however, that post-Howard Ninth decisions raised the possibility of higher burdens – and those cases presumably remain good law. See, e.g., United States v. Johansson, 249 F.3d 848, 853-54 (9th Cir. 2001).

How to Use: Contest any district court "quick look" done outside of the presence of the defendant, based on a defendant’s structural right to allocution. See United States v. Gunning, 401 F.3d 1145,1149 (9th Cir. 2005), available here. Although the allocution issue was pressed aggressively at oral argument, the Ninth entirely avoids the issue entirely in its en banc decision. This is a particularly remarkable omission, in that the majority cites Gunning three times in the majority decision for a different proposition! Every defendant with a pipeline case should raise this allocution challenge in the district court and take the case back up to the Ninth. Look for upcoming sample briefing and discussion of this challenge in the 9th Circuit blog and the ND Cal FPD web page in the upcoming weeks.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org