US v. Allen, No. 05-50078 (1-12-06). The 9th looks at the color of money, and remands. Actually, this is a counterfeiting case. The defendant passed a number of counterfeit $100 bills (he was celebrating Ben Franklin's contributions to this country). The plea had a recommended guideline calculation that had a +2 bump for distinctive paper, but none for manufacturing. Well, the ever vigilant probation officer in the PSR gave such a bump because of supposed printing press. The court ordered the prosecutor to call the agent, and the prosecutor, although stating she standing by the plea, was forced to ask questions. The court listened to the answers and gave the adjustment for manufacturing. Defense counsel argued that adjustment didn't occur because of note 4 of 2B5.1, which does not apply the adjustment if the bills were so obviously counterfeit that they would be unlikely to be accepted. The court failed to make a ruling. This led the 9th to reverse and remand. The note doesn't distinguish between possession and manufacturing, and would apply if the bills were obviously false. The 9th also chided the court for making the prosecutor call the agent and question him. The 9th held that the prosecutor stood by the recommendation, and asked neutral questions. The better practice, stressed the 9th, in such situations, is for the court to ask the questions.

US v. Cantrell, No. 03-30562 (1-13-06). This is a multi-defendant drug case. the convictions were dealt with in a memorandum; the sentencing issues are dealt with in this opinion. In this case, all the defendants save one did not avail themselves of Booker/Ameline, choosing instead to argue on appeal that the guidelines calculations were wrong, but not asking or demanding an Ameline remand. The 9th takes the opportunity to discuss the role of the guidelines as one of the 3553 factors, and their importance in achieving a correct sentence. The 9th stakes out the position here that it will review the Guidelines for incorrect application and if there was prejudicial error, the sentence will be remanded. The 9th emphasizes that courts are not bound by the guidelines, but must consult them and take them into account at sentencing. It helps if they are correct. The 9th states that "we hold that a material error by the district court in calculating the applicable Guideline range is grounds for resentencing, just as it was before Booker." (at 694). If there is no Guideline error, then the court will proceed to address challenges to reasonableness of the sentence. It cites to Menyweather, slip op at 16488-89. The 9th's note 5 outlines the views of the other circuits. The 9th will follow the 5th, 6th, 8th, and 11th Circuits. The 2nd and DC Circuits apparently use guideline errors as one factor in the total reasonableness. The 10th Circuit seems confused, only applying reasonableness to post-Booker cases. Okay, so the bottom line is a two step procedure: are the Guidelines accurate, and if so, was the sentence reasonable. The good news is that a Guideline error will get a reversal and remand, without a reasonableness totality examination. The bad news is precisely that, because the courts have to go with the Guidelines first, and so tend to view a sentence through the prism. On the whole, this procedure seems to give weigh in favor of the defendant. One can argue that the defendant gets two bites of the sentencing apple: guidelines and then reasonableness. The 9th then proceeds to dispatch the sentencing claims pretty quickly (there had been a trial and an extensive sentencing hearing, and the record supported the various sentences with no legal errors).