US v. Pridgette, No. 14-30223 (8-5-16)(Kozinski w/Gould; partial dissent by O'Scannlain).  An open or closed record for a re-sentencing?  Here, the government confessed error in a sentencing, where two prior criminal convictions received two points each (instead of one).  The points were added because the PSR reflected a jail term longer than actually served (the rest of the sentence was suspended). So, should the 9th send it back down for a re-sentencing and let the government try to prove the longer sentences?  No, opines the majority, because the government had its bite of the sentencing apple: it put on proof, argued, and tried but failed to prove facts.

This case provides a useful summary of when a sentencing remand is closed or open.  The opinion surveys the law.  As a general matter, the sentencing remand is on an open record unless where additional evidence would not change the outcome; or where there was a failure of proof after a full inquiry into the factual question at issue.   US v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002)(en banc).  Here, there was such a failure of proof.

Dissenting from the closed record remand, O'Scannlain argues the defendant had not explicitly requested a remand on a closed record.  (The majority retorts that precedent, judicial economy, and fairness all support such a closed record remand).  O'Scannlain also was not convinced that a "full inquiry" was made.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/05/14-30223.pdf