409 F.3d 1073 (9th Cir. 2005), 02-30326, United States v. Ameline

Docket Nº:02-30326.
Citation:409 F.3d 1073
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alfred Arnold AMELINE, Defendant-Appellant.
Case Date:June 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1073

409 F.3d 1073 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Alfred Arnold AMELINE, Defendant-Appellant.

No. 02-30326.

United States Court of Appeals, Ninth Circuit

June 1, 2005

Argued and Submitted En Banc March 24, 2005.

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Michael R. Dreeben, U.S. Dept. of Justice, Washington, DC, Michael A. Rotker, Atty., U.S. Dept. of Justice, Criminal Div., Appellate Sec., Washington, DC, for Plaintiff-Appellee.

Steven Hubacheck, Federal Defenders of San Diego, San Diego, CA, for Defendant-Appellant.

Anthony R. Gallagher, Esq., Assistant Federal Public Defender, Great Falls, MT, for Amicus Curiae Federal Public and Community Defenders.

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 SCHROEDER, Chief Judge, O'SCANNLAIN, HAWKINS, THOMAS, WARDLAW, W. FLETCHER, FISHER, GOULD, RAWLINSON, CLIFTON, and BEA, Circuit Judges.

RAWLINSON, Circuit Judge.

This case requires us to apply the United States Supreme Court's ruling in United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court struck down the sentencing scheme created by the Sentencing Reform Act of 1984 to the extent that the Act mandated the imposition of sentences predicated on facts not found by the jury or admitted by the defendant. To remedy the constitutional infirmity, the Court severed the mandatory portions of the Act, rendering its sentencing provisions, including the Sentencing Guidelines, effectively advisory. Left unresolved by Booker is the question of what relief, if any, is to be afforded to a defendant who did not raise a Sixth Amendment challenge prior to sentencing. We reheard this case en banc to address this issue for cases pending on direct review.

We are aware that our opinion is of considerable interest to the judges and practitioners in this Circuit who will face a myriad of issues post- Booker. We will not endeavor to foresee or address all potential ramifications of the Booker decision. However, we think it appropriate to amplify the context within which we decide this case in the hope of facilitating the resolution of pending cases.

We are, of course, not the only court of appeals to confront this issue. Our colleagues across the country have also wrestled with the aftermath of Booker. The difficulty of the matter is demonstrated by the fact that the various circuits have taken divergent approaches. We appreciate and have benefitted from their discussions in arriving at our own conclusion.

As described in more detail below, we hold that when we are faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory. If the district court responds affirmatively, the error was prejudicial and failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. The original sentence will be vacated by the district court, and the district court will resentence the defendant. If the district court responds in the negative, the original sentence

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will stand, subject to appellate review for reasonableness. See Booker, 125 S.Ct. at 769. In essence, we elect to follow the approach adopted by the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).

I.

Factual Background

Defendant Alfred Ameline pled guilty to knowingly conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The plea agreement approved by the court did not specify the quantity of methamphetamine involved, although at his change of plea hearing Ameline admitted that "some methamphetamine" was involved in the charged conduct. Ameline disputed the government's assertion that the amount of methamphetamine attributable to him was one and one-half kilograms.

The Presentence Report (PSR) prepared by the Probation Office attributed 1,079.3 grams of methamphetamine to Ameline. That amount resulted in a base offense level of 32, after applying the drug equivalency table from the United States Sentencing Guidelines Manual (Guidelines) § 2D1.1(c). The probation officer's conclusion as to drug quantities was based solely on the investigative reports the officer had reviewed, and the PSR contained a summary of the salient portions of the reports. A two-level enhancement was recommended pursuant to § 2D1.1(b)(1) for possession of a firearm in connection with the charged offense, resulting in an adjusted offense level of 34. With the recommended three-level adjustment for acceptance of responsibility, the recommended total offense level was 31. With a criminal history category of I, the sentencing range recommended in the PSR was 108 months to 135 months.

Ameline filed objections to the PSR, challenging the amount of drugs attributed to him. He also denied the truth of the firearm allegations. However, he did not challenge the recommended drug quantity enhancement as violative of the Sixth Amendment. The probation officer dismissed Ameline's objections and reaffirmed his determination of the quantity of methamphetamine in the original PSR and his recommendation as to the weapons enhancement. Ameline objected to the final PSR finding in his sentencing memorandum to the court.

At the beginning of the sentencing hearing, before any witnesses were called, 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 asked defense counsel to call his first witness. However, before counsel called any witnesses, the court again reiterated its intention:

[I]t is my position that the statements in the presentence report, that is, statements of fact, are reliable on their face and prima facie evidence of the facts there stated. And I will be taking those into account to the extent relevant to the obligations that I have in fashioning sentence and fixing responsibility for drug quantities, if they are not overcome by other evidence presented at this hearing. Be guided accordingly.

Consistent with his objections, Ameline testified and presented witnesses to refute the drug amounts attributed to him in the PSR. The government contended that an even larger amount of drugs should be

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attributed to Ameline, based on transactions not included in the PSR recommendation. No specific testimony was directed toward the firearm enhancement.

At the conclusion of the sentencing hearing, the district court found that 1,603.60 grams of methamphetamine were attributable to Ameline. That finding resulted in a base offense level of 34, two levels higher than that recommended in the PSR. The PSR described two additional transactions, but the probation officer did not include those transactions in calculating the recommended drug amount. The district court, however, included the amounts involved in the described transactions, thus establishing a higher base offense level. 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) weapons enhancement "undisputed," and applied a two-level enhancement for an offense level of 36, but deducted three points for timely acceptance of responsibility, for a total offense level of 33. The district court sentenced Ameline to 150 months, in the middle of the 135 to 168-month Guidelines range.

Ameline appealed. In his opening brief, Ameline challenged the district court's allocation of the burden of proof and the reliability of the hearsay evidence used to prove drug quantity. Ameline did not initially contest the preponderance of the evidence standard employed by the district court or the propriety of judicial factfinding under a mandatory sentencing regime.

After the case was submitted for decision by a three-judge panel of our court, but before a decision was filed, the Supreme Court announced its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In light of Blakely, our panel held that the determination of material sentencing facts by the district judge under a preponderance of the evidence standard, rather than by a jury as part of its verdict, violated Ameline's Sixth Amendment rights and amounted to reversible plain error. United States v. Ameline [Ameline I], 376 F.3d 967, 980 (9th Cir. 2004). The panel vacated Ameline's sentence and remanded with instructions that, if necessary, a jury must determine the amount of drugs attributable to Ameline and whether he possessed a weapon in connection with the offense. Id. at 983.

Within days of the filing of the panel decision in Ameline I, the Supreme Court granted certiorari and scheduled oral argument in Booker and a related case, United States v. Fanfan, --- U.S. ----, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004). Booker and Fanfan raised issues regarding the application of Blakely to federal sentencing. That led our court to defer...

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