USA. v. Mathews, 98-10499

• Decision Date: 14 February 2000
• Docket Number: No. 98-10499,98-10499
• Citation: 240 F.3d 806
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EARL MATTHEWS, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

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240 F.3d 806 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAMES EARL MATTHEWS, Defendant-Appellant. No. 98-10499 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 14, 2000--San Francisco, California
Filed September 14, 2000
Amended February 21, 2001

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Franny A. Forsman, Federal Public Defender, Paul G. Turner (argued), Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellant.

Kathryn E. Landreth, United States Attorney, Peter Ko (argued), Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding. D.C. No.CR-98-00040-PMP

Before: Betty B. Fletcher, William C. Canby, Jr., and Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge B. Fletcher; Partial Concurrence and Partial Dissent by Judge O'Scannlain

ORDER

The opinion filed September 14, 2000 and published at 226 F.3d 1075 (9th Cir. 2000) is amended as follows:

At page 1086 delete the following sentence and citation:

We therefore reverse and remand for resentencing on the record as it now stands. See United States v. Hudson, 129 F.3d 994, 995 (8th Cir. 1997).

Replace the deleted sentence and citation with the following:

We therefore hold that the government in this case failed to meet its burden of proving that Matthews qualifies as an armed career criminal. Because the government failed to comply with our long-established precedents, we limit the scope of the district court's resentencing authority on remand. The government should have been aware of what it was required to introduce to meet its burden, see Potter, 895 F.2d at 1238; Phillips, 149 F.3d at 1033, and it patently failed to comply with a critical requirement. Therefore, we agree with many of our sister circuits that a party should not be able to do on remand what it has no excuse for failing to do the first time around. See, e.g., United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995) ("The government had the burdens of production and persuasion, and we see no reason why it should get a second bite at the apple. No special circumstances

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justified, or even explained, the government's failure to sustain these burdens."); United States v. Parker, 30 F.3d 542, 553-54 (4th Cir. 1994) ("[T]he prosecution has already been given one full and fair opportunity to offer whatever proof about Tonsler Park it could assemble. Having failed to seize that opportunity, the Government at resentencing should not be allowed to introduce additional evidence to prove that Tonsler Park contained a playground. One bite at the apple is enough."); United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) (agreeing that when the prosecution fails to meets its burden of persuasion or production, "its case should ordinarily have to stand or fall on the record it makes the first time around" but allowing an exception because the government "tendered a persuasive reason why fairness so requires"); United States v. Monroe, 978 F.2d 433, 435-36 (8th Cir. 1992). Here, the government does not deserve a second bite of the apple. The defendant made patently clear to the district court and the government what our precedents require. The government did not seek to cure the deficiencies in its proof. To allow the government to reopen proceedings at this stage would be to waste court resources. Parties before district courts are obliged to prepare their cases in a thorough manner. When a party's initial victory is reversed by the appellate court because the party failed to meet this obligation, we are obliged to bring to an end the wasteful process. We therefore reverse and remand for resentencing on the record as it now stands.⁹ See United States v. Hudson, 129 F.3d 994, 995 (8th Cir. 1997). We do not suggest that in all cases where the government's proof has failed the court must always resentence without reopening the record. In those cases where the government demonstrates a persuasive reason why fairness so requires, this court has the discretion to permit the government to introduce the omitted evidence on remand; where the record is unclear, we may remand with instructions to the district court to permit the government to supplement the record only if it makes the requisite persuasive showing in the district court. See Dickler, 64 F.3d at 832. Here, however, the record is abundantly clear and adverse to the government.

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Notes:

9. The dissent complains that this defendant has received a "sentencing windfall" just because the government failed to meet its burden of proving the defendant's past convictions. It is a "windfall" only in the sense that another similarly situated defendant might face a probation officer and a prosecutor who undertake a proper investigation in the first instance and meet the burden of proof.

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ORDER

The partial concurrence and partial dissent by Judge O'Scannlain filed on September 14, 2000, and published at 226 F.3d 1075, 1086 (9th Cir. 2000) is amended as follows:

At pages 1086-87 delete the partial concurrence/partial dissent in its entirety. Replace the deleted partial concurrence/ partial dissent with the following:

I concur in the court's affirmance of Matthews's conviction, but I must respectfully dissent from its disposition of the sentencing issue in this case. Even assuming that the district court erred in applying the Armed Career Criminal ("ACC") enhancement of 18 U.S.C. 924(e),¹ I cannot concur in the drastic

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step of remanding for resentencing on the record as it now stands, i.e., barring the trial court from further developing the record as appropriate. There is simply no reason in this case for deviating from our "general practice " of allowing the district court to conduct further appropriate proceedings on remand for purposes of resentencing. United States v. Washington, 172 F.3d 1116, 1118 (9th Cir. 1999); see also United States v. Parrilla, 114 F.3d 124, 128 (9th Cir. 1997) ("On remand, the district court should conduct further proceedings as may be necessary to enable it to make appropriate findings to resolve the factual dispute . . . ."); United States v. Hedberg, 902 F.2d 1427, 1429 (9th Cir. 1990) (remanding for de novo sentencing proceedings).

The Eighth Circuit opinion cited by the majority, United States v. Hudson, 129 F.3d 994 (8th Cir. 1997), is rather cryptic and not very helpful in justifying this highly unusual step. The Hudson court supported its closing of the record by claiming that "we have clearly stated the governing principles as to when and how disputed sentencing facts must be proved." Id. at 995. The D.C. and Fourth Circuit cases cited by the majority did not involve statutes as complex as the ACC provision. Instead, those cases involved failures by the prosecution to establish facts specified by the relevant statutes, where there was no uncertainty as to the statutes' requirements. In United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995), the government did not introduce relevant evidence of the loss caused by the defendant's bank fraud. In United States v. Parker, 30 F.3d 542, 551-53 (4th Cir. 1994), the government sought to enhance the defendant's sentence by charging him with distribution of drugs within 1000 feet of a playground, but failed to prove that the property met the statute's definition of "playground."

The majority in this case, having oversimplified matters greatly, may regard the principles governing application of the ACC enhancement as "clearly stated" by prior case law, but more careful examination of the issue discloses that these principles are quite complex, have spawned a great deal of litigation in the lower courts, and are far from "clearly stated." Accordingly, I see no reason to punish the government by prohibiting it from completing its showing on remand to establish the applicability of the ACC enhancement with even greater certainty.

The majority's new exception to its new rule will provide little guidance to future panels, and little comfort to those of us who seek predictability and consistency in sentencing. This case by case approach contradicts the goals of both the ACC enhancement and the Sentencing Guidelines: The ACC enhancement was enacted in order to provide mandatory minimum sentences for armed career criminals. See Sweeten, 933 F.2d at 770. The Sentencing Guidelines were established in large part to reduce unwarranted sentencing disparities. See United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir. 2000) (en banc). In allowing Matthews to escape imposition of the ACC enhancement simply because of the fortuity (from Matthews's perspective) that his probation officer prepared a less-than-complete PSR, the majority flouts congressional intent with respect to both the ACC enhancement and the Sentencing Guidelines.

The process of criminal sentencing is not a game between the government and criminal defendants, in which one side or the other gets penalized for unskillful play. The goal of sentencing is to determine the most appropriate sentence in light of the

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characteristics of the crime and the defendant. If Matthews is an "armed career criminal" under the ACC statute (and the record makes clear that he is), then he should be sentenced as one. Because I cannot agree to bestowing a sentencing windfall upon a defendant with a long and extensive history of committing violent crimes, especially when equally culpable but less fortunate defendants have been subjected to the enhancement, I must respectfully dissent.

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Notes:

1. Even assuming that the district court erred in applying the enhancement, the majority's analysis of this issue is overbroad and inconsistent with our prior precedents.

In emphasizing the...