US v. Ameline
No. 02-30326 (6-1-05)(en banc). The 9th took up the "plain error" issue of Booker error in this en banc decision. Rather than articulate a principled bright-line test (like the 4th Circuit in Hughes) that assumes error, the 9th instead punted by adopting a limited remand of the issue to the district court to determine if the sentence would be different. Taking the same approach as the Second Circuit in Crosby, the 9th holds that when there is an unpreserved Booker error, and the record is insufficiently clear to conduct a plain error review, there will be a limited remand to the district court to determine if advisory guidelines would have materially changed the sentence. If so, the error is deemed prejudicial and failure to notice the error would be deemed to seriously affect the integrity, fairness, and public reputation of the proceedings. A resentencing will then take place. If the district court responds that the sentence would not change, then the original sentence will stand, subject to appellate review for reasonableness. The district court must get the parties' views in writing. The 9th also manages to cloud the issue of burden of proof, indicating in the case that the burden of proof should be consistent with Howard, which embraced a preponderance standard, although later cases indicated that a higher standard (clear and convincing) might be appropriate in certain relevant conduct/adjustment circumstances. The 9th also left murky the right of allocution. In the 9th's shifting of the decision back to the district courts, the 9th is blind to realities of how district courts facing decisions it made months or years ago can really know. The risk of rubber-stamping is very real, although the 9th righteously asserts that courts would never do that. In dissent, Judge Wardlaw takes the majority to task, arguing that a more honest and better approach would be to assume error.