462 F.3d 1067 (9th Cir. 2006), 05-10587, United States v. Montgomery

Docket Nº:05-10587.
Citation:462 F.3d 1067
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bert Douglas MONTGOMERY, Defendant-Appellant.
Case Date:August 29, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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462 F.3d 1067 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bert Douglas MONTGOMERY, Defendant-Appellant.

No. 05-10587.

United States Court of Appeals, Ninth Circuit.

Aug. 29, 2006

Argued and Submitted June 15, 2006.

G. Anthony Long, Esquire, Saipan, MP, for the defendant-appellant.

Timothy E. Moran, Assistant United States Attorney, Saipan, MP, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern Mariana Islands; Alex R. Munson, Chief District Judge, Presiding. D.C. No. CR-02-00010-ARM.

Before B. FLETCHER, PREGERSON, and CANBY, Circuit Judges.

PREGERSON, Circuit Judge.

On limited remand pursuant to United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir.2005) (en banc), the district court did not "obtain the views of counsel" before it decided not to re-sentence Appellant Bert Montgomery. Montgomery argues that the district court, in not obtaining the views of counsel, did not comply with the instructions laid down in Ameline. We

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have jurisdiction under 28 U.S.C. § 1291. We hold that our decision in Ameline requires the district court to obtain the views of counsel before it decides whether Ameline re-sentencing is warranted. Because the district court did not do so, we remand Montgomery's case for a second time.

I. Factual Background

Bert Montgomery was involved in a complex fraud scheme that led to the temporary closing of the Bank of Saipan and millions of dollars of loss. Montgomery, along with his business partner DuSean Berkich, endeavored to purchase a controlling interest in the Bank of Saipan. To accomplish this, they convinced Tomas Aldan, the CEO and Chairman of the Board of the Bank of Saipan, to serve as their "inside man" by promising him lucrative benefits and kickbacks. The three then attempted, by various fraudulent means, to acquire Bank of Saipan stock. Montgomery's fraud resulted in a loss of over five million dollars to the Bank of Saipan. As a result of the fraud, the Bank of Saipan was temporarily closed and was placed in receivership, a scandal that was highly publicized in Saipan. As Montgomery acknowledges in his brief, the actions of Montgomery and his co-conspirators are alleged to have disrupted "banking and business operations in the Commonwealth ... and the region in general."

On June 20, 2003, a jury convicted Montgomery of: three counts of wire fraud and conspiracy to commit wire fraud; one count of deprivation of honest services; and four counts of money laundering. The district court accepted the recommendation of the presentence report ("PSR") and assigned Montgomery a Guidelines offense level of 38. The district court rejected Montgomery's objections to several of the upward departures recommended by the PSR, and found that Montgomery's age and health did not provide a basis for a downward departure. The Guidelines sentencing range was 235 to 293 months, and the district court settled on a 240-month sentence, a sentence near the low end of the range.

Montgomery appealed to this court. In a memorandum disposition, a panel of this court affirmed Montgomery's conviction. See United States v. Montgomery, 143 Fed.Appx. 757, 759, 2005 WL 1793392, at *1 (9th Cir. July 27, 2005) (D.W.Nelson, Kozinski, Bea). Because the district court had sentenced Montgomery under the mandatory Guidelines scheme, the panel found non-constitutional error and remanded under Ameline, 409 F.3d at 1074. See Montgomery, 143 Fed.Appx. at 760. The panel instructed the district court, on limited Ameline remand, to determine " 'whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.' " Id. (quoting Ameline, 409 F.3d at 1074).

On August 25, 2005, the district court received the certified judgment of this court. On August 29, 2005--only four days later and without receiving any input from counsel--the district court issued an order denying re-sentencing. The court stated that it had "reviewed the court file, the presentence report, and the sentence imposed upon defendant, and also ha[d] an independent recollection of the salient facts of this jury trial." The court declined to alter Montgomery's sentence because:

Th[e] defendant's primary role in the intentional fraud perpetrated on the Bank of Saipan resulted in direct injury to thousands of bank depositors, including the Commonwealth government, all of whom lost access to their savings. The indirect injury caused to the families of individual account holders and to

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