US v. Combs, No. 05-30486 (12-18-06). The 9th (Kozinki joined by Tallman) wrestles with the standard of review when, on an Ameline plain error remand, the sentencing court said, "naw, the sentence wouldn't have been different." Since it was plain error review (the sentence was prior to Booker), the 9th shrugs and says "tough." The standard of review is absolutely deferential -- if the sentencing judge said he or she would not have changed the sentence, so be it. That decision is not reviewed for reasonableness. Because the sentence was not challenged in the appeal, no new claims could be raised once the door slammed on review. Dissenting, Berzon calls the majority's interpretation "peculiar" and that its interpretation of "reasonableness" defies common sense, and also runs counter to Amerline's holding itself. Berzon argues that the purpose of Ameline was to give pre-Booker defendants the same review for reasonableness as post-Booker defendant's. Berzon also disagrees that the sentencing court applied the right standard is saying that the sentence would not have been "materially" different. Berzon's point is that any difference matters. The court did not understand the full scope of his discretion.