Case o' The Week: Berzon unimpressed with Kozinski's Combs-over

The defense bar must have been naughty this year -- Kozinski left a big lump of coal in our stockings with the disappointing Combs decision. United States v. Combs, __ F.3d __, 2006 WL 3704777 (9th Cir. Dec. 18, 2006), decision available here. In a case of first impression, the Ninth limits appellate review of a district court's "first pass" on Ameline remand to whether the court knew it had Booker discretion. (In other words, effectively no review at all).

Players: Kozinski authors, joined by Tallman: Berzon dissents.

Facts: On an Ameline remand, an Alaskan district court concludes that it wouldn’t have given a different sentence under advisory guidelines. Id. at *1. [This is the plain error “first pass” review set forth in the Ameline en banc decision].

Issue(s): “On appeal, defendant challenges the district court’s . . . determination that defendant’s sentence would have been the same under an advisory Guidelines system.” Id. “Defendant argues that the district court ignored [§ 3553(a)] provisions by failing to take into account information regarding his educational and vocational skills, mental and emotional conditions, drug and alcohol dependence, and lack of guidance as a youth. This argument requires us to consider an issue of first impression: By what standard to we review a district court’s determination, made during the course of an Ameline remand, that it would have imposed the same sentence under an advisory Guidelines system?” Id. at *2.

Held: “[T]here is an issue we can consider that bears on the reasonableness of the sentence [when the district court determines that it would have imposed the same sentence under an advisory Guidelines system]: Whether the district judge properly understood the full scope of his discretion in a post-Booker world . . . . A more demanding inquiry would turn every Ameline remand into a full-blown resentencing, and would thus be contrary to Ameline’s central holding that defendant whose sentences are being reviewed for plain error are entitled only to a limited remand.” Id. at *3.

Of Note: Berzon offers a vigorous, and persuasive, dissent. Id. at *4. (Aside: this must have been an interesting conference, with these three strong personalities on the panel). Berzon notes that the Ameline en banc court did not limit Booker reasonableness review in the way concocted by the majority, and she questions whether the district judge really understood his full Booker discretion on this Ameline remand. Id. at *4-*6.

How to Use: Recall that the Ameline en banc punted one prong of plain error review back to the district courts, which created the mess that spawns opinions like Combs. Learn from this recent history, and preserve objections to everything in the sentencing context – including the limited Ameline remand “first pass” procedure. While it’s doubtful that Rita and Clairborne will directly overrule Ameline, who would have predicted our current state of affairs three years ago? Kozinski, Tallman, and Combs are potent illustrations of where failing to object – and plain error review – will get you.

For Further Reading: As reported earlier, the Ninth has held-off on deciding Zavala/ Carty until the Supremes decide Rita and Clairborne – although this didn’t, apparently, dissuade this panel from acting right away. The best site thus far on Rita and Clairborne is hosted by the New York Council of Defense Lawyers. See page here. Here you can find all of the amicus briefs as well as a study that – brace yourself – finds that appellate courts universally don’t reverse in-guideline sentences for reasonableness review, but do reverse below-guideline sentences. See amicus brief here.

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


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