U.S. v. Ameline

• Decision Date: 09 February 2005
• Docket Number: No. 02-30326.,02-30326.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred Arnold AMELINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.3d 646

UNITED STATES of America, Plaintiff-Appellee, v. Alfred Arnold AMELINE, Defendant-Appellant.

No. 02-30326.

United States Court of Appeals, Ninth Circuit.

Submitted November 4, 2003.^*

Opinion Filed July 21, 2004.

Rehearing Granted and Opinion Withdrawn February 9, 2005.

Opinion on Rehearing Filed February 9, 2005.

Filed February 9, 2005.

As Amended February 10, 2005.

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Brian P. Fay, Angel, Coil & Bartlett, Bozeman, MT, for the appellant.

William W. Mercer, United States Attorney, and Lori Harper Suek, Assistant United States Attorney, Great Falls, MT; Michael A. Rotker, Attorney, United States Department of Justice, Washington, D.C., for the appellee.

David M. Porter, Sacramento, CA, for Amicus National Ass'n of Criminal Defense Lawyers.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-02-00011-SEH.

Before WARDLAW, GOULD, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge:

In light of the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), we granted appellant Alfred Ameline's petition for rehearing to reconsider our decision in United States v. Ameline, 376 F.3d 967 (9th Cir.2004). In our original opinion, we held that, because Ameline's sentence under the United States Sentencing Guidelines was based on facts found by the district judge by a preponderance of the evidence, his sentence violated the Sixth Amendment as construed by the Supreme Court in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We vacated Ameline's sentence and remanded for resentencing with directions that, if necessary, a jury determine the amount of drugs attributable to Ameline and whether he possessed a weapon in connection with his conviction, two factors that could enhance his sentence under the Sentencing Guidelines.

After our decision issued and while Ameline's petition for rehearing was pending, the Supreme Court granted certiorari in United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, ___ U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), and Fanfan v. United States, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted before judgment, ___ U.S. ___, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004), to consider whether, after Blakely, application of the federal Sentencing Guidelines violates a defendant's Sixth Amendment rights. In Booker, the Court held that "the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines." Booker, 125 S.Ct. at 745. To remedy the Sixth Amendment violation, the Court severed two provisions from the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998, one which made the Sentencing Guidelines mandatory and one that depended on the mandatory nature of the Guidelines. With the excision of these two provisions, the Court held that the Sentencing Guidelines are now "effectively advisory." Booker, 125 S.Ct. at 757.

Our original opinion was consistent with Booker's holding that the Sixth Amendment as construed in Blakely applies to the Sentencing Guidelines. It was at odds, however, with the Court's severability remedy that eliminated the mandatory nature of the Sentencing Guidelines. Applying Booker to the present case, we conclude that (1) the Court's holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered; (2) because Ameline did not raise a Sixth Amendment argument at the time of sentencing we review for plain error; (3) Ameline's sentence violated the Sixth Amendment and constituted plain error; and (4) the error seriously affected the fairness of Ameline's proceedings. Accordingly, we vacate Ameline's sentence and remand for resentencing.

To provide guidance to the district court in resentencing Ameline, we also address Ameline's challenge to the district court's ruling that he bore the burden of disproving the amount of methamphetamine that the Presentence Report ("PSR") attributed to him. In addressing this issue, we conclude that Booker did not relieve the district court of its obligation to determine the Sentencing Guidelines range for Ameline's offense of conviction. In determining the guideline range, the district court must still comply with the requirements of Federal Rule of Criminal Procedure 32 and the basic procedural rules that we have adopted to ensure fairness and integrity in the sentencing process. Although the district court is not bound by the Sentencing Guidelines range, basic procedural fairness, including the need for reliable information, remains critically important in the post-Booker sentencing regime.

I.

Ameline pled guilty to knowingly conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. His plea agreement did not specify the quantity of methamphetamine for purposes of sentencing, but rather left that determination to the district court at the time of sentencing. At Ameline's change of plea hearing, he disputed the government's offer of proof that he distributed one and a half kilograms of methamphetamine, but admitted that "some methamphetamine" was involved in his offense conduct. At the end of the hearing, Ameline's counsel informed the court that he expected to present witnesses who would dispute the amount of methamphetamine that the government attributed to Ameline.

The PSR prepared by the Probation Office attributed 1,079.3 grams of methamphetamine to Ameline for purposes of applying the drug equivalency table found in the United States Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(c), resulting in a recommended base offense level of 32. The PSR also recommended a two-level enhancement pursuant to § 2D1.1(b)(1) for possession of a weapon in connection with the offense. This enhancement was based on hearsay testimony by a confidential informant that Ameline sold to him methamphetamine in exchange for a rifle, and that he once witnessed Ameline threaten his son with a handgun.

After the probation officer disclosed the draft PSR to Ameline and the government, Ameline, as required by the court's April 30, 2002 Sentencing Order, presented the probation officer with a series of objections to the quantity of methamphetamine attributed to him in the report. Ameline also objected to the two paragraphs that formed the basis of the two-level weapon enhancement as "false." In his letter objecting to the draft PSR, Ameline explained the basis for his objections and the evidence on which he would rely at the sentencing hearing. The probation officer dismissed Ameline's objections and reaffirmed his determination of the quantity of methamphetamine in the original PSR, as well as the upward enhancement. In Ameline's pre-hearing Sentencing Memorandum, he objected to the amount of methamphetamine attributed to him in the PSR. Ameline's memorandum detailed the evidence that he intended to rely upon to dispute the drug quantity determined in the PSR.

At the beginning of the sentencing hearing, before any witnesses testified, the district judge informed the parties how he intended to proceed:

It is the position of this court in this matter, as it is in all such cases, that the facts as recited in the presentence report are prima facie evidence of the facts set out there; that if the defendant challenges the facts set forth in the presentence report, it is the burden of the defendant to show that the facts contained in the report are either untruthful, inaccurate, or otherwise unreliable.

The district judge then instructed defense counsel to call his first witness.¹

Consistent with his objections, Ameline presented testimony from "Toro," aka Shawn Rodriguez, Reuben McDowell, Michael Lamere, and a confidential informant, Dan Metcalf, to dispute the amount of methamphetamine attributed to him in the PSR. At the conclusion of the sentencing hearing, the district court found that 1,603.60² grams of methamphetamine were attributable to Ameline, for a base offense level of 34. The district court stated, "I should let all parties know that all findings are based upon a preponderance of the evidence standard and are established at least to that standard in the view of the court." The district court found the § 2D1.1(b)(1) weapon enhancement "undisputed," raising the offense level to 36, but deducted three points for timely acceptance of responsibility. The resulting total offense level was 33. The district court sentenced Ameline to 150 months, in the middle of the 135 to 168 month range established by the Sentencing Guidelines.

II.

A.

On appeal, Ameline initially challenged the district court's determination that he bore the burden of disproving the factual statements in the PSR relating to drug quantity. He also challenged the court's determination that the hearsay evidence used to prove drug quantity was sufficiently reliable. Ameline did not raise a Sixth Amendment challenge to his sentence. When we submitted Ameline's appeal for decision on November 4, 2003, he had contested neither the preponderance of the evidence standard used by the district judge nor the propriety of the judge as factfinder.

Nonetheless, in our original opinion, we noted that the Supreme Court's recent decision in Blakely raised the possibility that Ameline's initial challenges had been subsumed by a violation of his Sixth Amendment rights. Based on the Supreme Court's ruling in Blakely that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," Blakely, 124 S.Ct. at 2537, we concluded that Blakely worked "a sea change in the body of sentencing law." Ameline, 376 F.3d at 973. In light of the potential impact of Blakely on the Sentencing Guidelines, we also concluded that we would be remiss if we did not, sua...