United States v. Thomas ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-30541
v.
 D.C. No.
CR-03-00129-FVS
ROSHON E. THOMAS, aka Rollin
Roy Phillips, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Chief Judge, Presiding
Submitted March 9, 2006*
Seattle, Washington
Filed May 18, 2006
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge O’Scannlain
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5427
5430 UNITED STATES v. THOMAS
COUNSEL
Richard D. Wall, Spokane, Washington, was on the briefs for
the appellant.
James A. McDevitt, United States Attorney, and Joseph A.
Harrington, Assistant United States Attorney, were on the
brief for the appellee.
UNITED STATES v. THOMAS 5431
OPINION
O’SCANNLAIN, Circuit Judge:
This case requires us to consider whether a driver of a
rental car who is not listed on the rental agreement has stand-
ing to challenge a police search of the vehicle.
I
Michael Bahr, a Spokane City, Washington, police officer
and Drug Enforcement Agency (“DEA”) task force officer,
received a tip regarding the defendant-appellant, Roshon
Thomas, in November 2002. Officer Bahr never met with the
undisclosed source of the tips (“the Source”), whose identity
has remained confidential out of concern for the individual’s
safety.1 Officer Bahr spoke with the Source over the phone,
determined its identity, and learned that the Source had never
been arrested or convicted of a criminal offense. The Source
received no compensation for the information provided to
Officer Bahr.
The Source told Officer Bahr that Thomas had been renting
cars—or instructing others to rent them for him—which he
would use to transport crack cocaine from Long Beach, Cali-
fornia, to Spokane, Washington. Approximately 1-2 years ear-
lier, the Source rented a vehicle at Thomas’s direction.
Thomas and the Source drove the vehicle to Long Beach,
where the Source was present when Thomas purchased crack
cocaine, which they then transported back up to Spokane in
the rental vehicle. The Source reported that Thomas made
similar trips with other individuals every six to eight weeks.
1
Thus, the source is not “unidentified,” as Thomas suggests.
5432 UNITED STATES v. THOMAS
A
In November 2002, according to the Source, Thomas
obtained and transported crack cocaine from Long Beach for
an individual named Antonio Crawford, who had recently
been arrested for the distribution of crack cocaine. The Source
explained that Jamie McGuffey rented the vehicle Thomas
used to transport the drugs from Long Beach. The Source
stated that McGuffey usually rented cars from Dollar Rental
Company or Budget Rental Company at the Spokane Airport.
The police then corroborated the Source’s information, to
the extent possible. Officer Bahr was aware that during that
month, Crawford had been arrested for the distribution of
crack cocaine. The Spokane County Gang Unit advised Offi-
cer Bahr that McGuffey was one of Thomas’s known asso-
ciates. Officers also spoke with a manager at the Spokane
Airport location of the Budget Rental Car Company
(“Budget”), who confirmed that McGuffey had rented a car in
November 2002, and returned it with 2,889 additional miles
on the odometer. Based on his training and experience, Offi-
cer Bahr concluded that this milage was consistent with a
round trip from Spokane to Long Beach. The Budget manager
later informed Officer Bahr that Thomas had rented cars from
Budget on three prior occasions, though milage information
had been expunged from company computers.
B
In December 2002, the Source again provided Officer Bahr
with information that Thomas would be traveling to Long
Beach with his family over the Christmas holiday. Again the
Source asserted that the purpose of the trip was to transport
crack cocaine. The Spokane County prosecutor’s office
informed Officer Bahr that an arrest warrant had been issued
for Thomas, but Officer Bahr was further advised that the
warrant had been recalled due to a miscommunication
between Thomas and the prosecutor’s office.
UNITED STATES v. THOMAS 5433
C
On February 27, 2003, the Budget manager at the Spokane
Airport contacted Officer Bahr to inform him that Thomas
and McGuffey had attempted to rent a car that day. Budget
refused to rent Thomas and McGuffey a car because both had
outstanding unpaid late fees. The Budget manager told Offi-
cer Bahr that he intended to warn the other rental car services
at the Spokane Airport about Thomas and McGuffey.
On March 4, 2003, a representative from National Car
Rental (“National”) at the Spokane Airport called Officer
Bahr and reported that McGuffey had just made a four-day
rental reservation. McGuffey was scheduled to pick up the car
— a white 2003 Dodge Intrepid — at noon the following day.
National’s manager agreed to allow the police to install a
tracking device in the car while the car was in National’s
garage facility before rental to McGuffey.2
On March 5, McGuffey entered into a rental contract with
National. McGuffey signed the rental agreement below the
following text: “Only I and authorised driver(s) may drive the
vehicle.” The contract did not list Thomas as an authorized
driver.
D
On March 8, 2003, the tracking device alerted police that
McGuffey’s rental car returned to Washington State. Because
Officer Bahr was unavailable at the time, he contacted another
DEA officer who, accompanied by Washington State Patrol
troopers, monitored the freeways until a car matching the
description of the rental car—including a matching license
plate number—appeared at approximately 1:30 a.m.
2
Though National’s manager granted permission, Officer Bahr also
obtained a warrant authorizing him to install the tracking device.
5434 UNITED STATES v. THOMAS
After stopping the car, the DEA agent approached the car
and recognized Thomas from a booking photograph that he
had been given by Officer Bahr. There were no other individ-
uals in the vehicle. Thomas presented officers with a driver’s
license bearing the name “Roland Phillips.” After further con-
firming Thomas’s true identity by checking his tattoos, offi-
cers arrested Thomas based on an outstanding warrant. The
police then searched the rental vehicle and found, among
other items, nearly 600 grams of cocaine in what police
described as “a Sprint bag, a small . . . telephone bag,” located
next to the spare tire in the vehicle’s trunk.3 They also found
$1200 and 25.1 grams of heroin.
E
Thomas’s counsel moved to suppress the evidence seized
from the rental car. During the suppression hearing, Thomas
asserted that the use of the tracking device violated his right
to privacy under Griswold v. Connecticut, 381 U.S. 479(1965), but did not contend that McGuffey gave him permis-
sion to use or to drive the rental car.4 The district court con-
cluded that Thomas “failed” to show that McGuffey gave
permission to use the car because “nothing was presented in
[Thomas’s] favor at the suppression hearing.”5 The district
3
The record does not disclose whether Thomas consented to the search,
but the government does not attempt to justify the search on consent
grounds. Because the burden is on the government to show consent,
United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997),
therefore, we assume that Thomas did not consent to the search.
4
Thomas’s trial counsel’s decision not to call any witnesses on the
standing issue were Thomas’s grounds for a later motion to withdraw his
guilty plea.
5
Thomas contends that the district court reached inherently contradic-
tory factual conclusions regarding McGuffey permission (or lack thereof)
to use the rental car. Though the district court noted that Thomas did not
present any evidence showing that McGuffey loaned Thomas the rental
car, the district court also stated that “McGuffey’s decision to allow Mr.
Thomas to drive the rental car nullified the rental agreement” (emphasis
UNITED STATES v. THOMAS 5435
court denied Thomas’s motion to suppress on several
grounds: an unauthorized driver of a rental car has no expec-
tation of privacy, so Thomas lacked standing to challenge the
search; there was probable cause to issue a search warrant;
monitoring public movements was not a search in the first
place; a Terry stop was proper under the circumstances; the
automobile exception applied and supported the search; and
discovery was inevitable in any event.
After the district court denied Thomas’s motion to sup-
press, Thomas entered a conditional guilty plea to one count
of Possession with Intent to Distribute a Controlled Substance
in violation of 21 U.S.C. § 841(a)(1).6 The district court sen-
tenced Thomas to 188 months pursuant to U.S.S.G. § 4B1.1.
Thomas remains in custody and timely appeals.
II
Thomas contends that he has standing to challenge an
added). Thomas asserts that this statement conflicts with the conclusion
that McGuffey did not give Thomas permission to use the rental car.
We disagree. The district court noted “McGuffey’s decision to allow”
Thomas to drive the rental car as part of its alternative holding that the dis-
covery of the drugs was inevitable. The district court could only reach the
inevitable discovery question after concluding that Thomas had standing
—that is, assuming he had permission to use the car. The district court’s
statement does not abrogate its clear factual conclusion that McGuffey did
not give Thomas permission to use the car.
In any event, it is undisputed that Thomas presented no evidence during
the suppression hearing that McGuffey gave permission to use the rental
car. Thus, had the district court concluded that McGuffey gave Thomas
permission, that conclusion would not be supported by any evidence and
we would reject it as clearly erroneous.
6
Thomas later attempted to withdraw this plea, arguing ineffective assis-
tance of counsel. The district court denied the motion to withdraw the
guilty plea, and Thomas does not appeal that decision.
5436 UNITED STATES v. THOMAS
allegedly unconstitutional search of the rental car even though
he was not formally authorized to drive the car.7
A
[1] To evaluate whether an unauthorized driver has a pri-
vacy interest in a rental car, we consider whether “the person
who claims the protection of the [Fourth] Amendment has a
legitimate expectation of privacy in the invaded place.” Rakas
v. Illinois, 439 U.S. 128, 143 (1978). An expectation of pri-
vacy is legitimate if it is one which society accepts as objec-
tively reasonable. See Minnesota v. Olson, 495 U.S. 91, 95-96
(1990); California v. Greenwood, 486 U.S. 35, 39 (1988).
Courts have developed at least three approaches to determin-
ing when an unauthorized driver of a rental vehicle has stand-
ing to challenge a search.
The first approach is seen in the Fourth, Fifth, and Tenth
Circuits.8 See United States v. Wellons, 32 F.3d 117, 119 (4th
Cir. 1994); United States v. Boruff, 909 F.2d 111, 117 (5th
Cir. 1990); United States v. Roper, 918 F.2d 885, 887-88
(10th Cir. 1990). These courts have all adopted a bright-line
7
We review a motion to suppress de novo. United States v. Bynum, 362
F.3d 574, 578 (9th Cir. 2004); United States v. Meek, 366 F.3d 705, 711
(9th Cir. 2004). Findings of fact underlying the district court’s determina-
tion are reviewed for clear error. Bynum, 362 F.3d at 578.
8
In United States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir. 1990), the
Fifth Circuit concluded that an unauthorized driver may have standing to
challenge the search of a rental truck if the driver had the renter’s permis-
sion. However, later Fifth Circuit cases have followed a bright-line
approach and have noted that Kye Soo Lee “is not controlling . . . because
it neither reflects nor addresses the terms of the truck rental agreement.”
United States v. Seeley, 331 F.3d 471, 472 n.1 (5th Cir. 2003); see also
United States v. Dortch, 199 F.3d 193, 205 (5th Cir. 1999) (“The suppres-
sion hearing record does contain evidence that under the rental agreement
neither Dortch nor the passenger was an authorized driver. These facts dis-
tinguish the instant case from [Kye Soo Lee.]”). Similarly, in this case,
where the rental agreement shows that only McGuffey was authorized to
drive the car, Kye Soo Lee is inapplicable.
UNITED STATES v. THOMAS 5437
test: An individual not listed on the rental agreement lacks
standing to object to a search. Their cases reason that because
an unauthorized driver lacks a property or possessory interest
in the car, the driver does not have an expectation of privacy
in it. See also United States v. Haywood, 324 F.3d 514, 516
(7th Cir. 2003) (concluding that where the driver lacks a valid
license, the rental company would not have granted permis-
sion to use the vehicle, and there is no expectation of pri-
vacy).
The second approach, seen in the Eighth Circuit, is a modi-
fication of the majority bright-line approach, and generally
disallows standing unless the unauthorized driver can show he
or she had the permission of the authorized driver. United
States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998); United
States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (per
curiam). The Eighth Circuit reasoned that an unauthorized
driver would have standing after a showing of “consensual
possession” of the rental car. Muhammad, 58 F.3d at 355 (cit-
ing United States v. Sanchez, 943 F.2d 110, 114 (1st Cir.
1991), which held, for a privately owned car, that a defendant
would have standing on a showing of “a more intimate rela-
tionship with the car’s owner or a history of regular use of the
[car]”). In effect, this approach equates an unauthorized driver
of a rental car with a non-owner driver of a privately owned
car. Cf. United States v. Portillo, 633 F.2d 1313, 1317 (9th
Cir. 1980) (holding non-owner has standing to challenge a
search where he has “permission to use his friend’s automo-
bile and the keys to the ignition and the trunk, with which he
could exclude all others, save his friend, the owner”); San-
chez, 943 F.2d at 114.
The third approach, adopted in the Sixth Circuit, examines
the totality of the circumstances. United States v. Smith, 263
F.3d 571, 586 (6th Cir. 2001). In Smith, the Sixth Circuit
noted a broad presumption against granting unauthorized
drivers standing to challenge a search. However, the court
stated that the “rigid [bright-line] test is inappropriate, given
5438 UNITED STATES v. THOMAS
that we must determine whether [the defendant] had a legiti-
mate expectation of privacy which was reasonable in light of
all the surrounding circumstances.” Id. (citing Rakas, 439
U.S. at 152 (Powell, J., concurring)). Instead, the court opted
to consider a range of factors, including: (1) whether the
defendant had a driver’s license; (2) the relationship between
the unauthorized driver and the lessee; (3) the driver’s ability
to present rental documents; (4) whether the driver had the
lessee’s permission to use the car; and (5) the driver’s rela-
tionship with the rental company, and held that the defendant
had standing to challenge the search. Id.
B
[2] The extent of an unauthorized driver’s standing to chal-
lenge a rental automobile search is a question of first impres-
sion in this Circuit. We have previously held that the owner
of an automobile has a legitimate expectation of privacy in the
car, and therefore he has standing to object to an unconstitu-
tional search. See United States v. Kovac, 795 F.2d 1509,
1510-11 (9th Cir. 1986) (citing Rakas, 439 U.S. at 144 n.12).
In contrast, “a person does not possess a reasonable expecta-
tion of privacy in an item in which he has no possessory or
ownership interest.” United States v. Cormier, 220 F.3d 1103,
1108 (9th Cir. 2000) (citing and discussing United States v.
Miller, 425 U.S. 435, 440 (1976)). Thus, the question
becomes whether an unauthorized driver has a possessory or
ownership interest in the car.
[3] A “possessory or ownership interest” need not be
defined narrowly: A reasonable expectation of privacy may be
shown “ ‘either by reference to concepts of real or personal
property law or to understandings that are recognized and per-
mitted by society.’ ” Minnesota v. Carter, 525 U.S. 83, 88
(1998) (quoting Rakas, 439 U.S. at 142 n.12). Therefore, a
defendant who lacks an ownership interest may still have
standing to challenge a search, upon a showing of “joint con-
trol” or “common authority” over the property searched.
UNITED STATES v. THOMAS 5439
Compare Portillo, 633 F.2d at 1317 (defendant has standing
to challenge a search of a friend’s car because he was in pos-
session of the car with the permission of the owner), and
United States v. Johns, 851 F.2d 1131, 1136 (9th Cir. 1988)
(defendants have standing to challenge search of a storage
unit over which they had joint control and supervision), with
United States v. Lockett, 919 F.2d 585, 588 (9th Cir. 1990)
(defendant who did not reside at or show a proprietary interest
in a residence, and who could not show joint control or super-
vision of the property, lacks standing to challenge a search).
[4] Common authority rests “on mutual use of the property
by persons generally having joint access or control for most
purposes.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)
(quotation omitted). For example, in United States v. Jones,
362 U.S. 257, 259, 265 (1960), the defendant had standing to
challenge a search of a friend’s apartment when he had per-
mission to use the apartment, had a key to the apartment,
stored his belongings there, and had the right and ability to
exclude others, except the owner, from the apartment. See
also Rakas, 439 U.S. at 148-49 (contrasting Jones with a
defendant who “asserted neither a property nor a possessory
interest in the automobile, nor an interest in the property
seized”). Similarly, in United States v. Portillo we held that
a defendant had a legitimate expectation of privacy in his
friend’s car, though the defendant lacked any cognizable
property interest in the car. 633 F.2d at 1317. We noted that
a defendant may have a legitimate expectation of privacy in
another’s car if the defendant is in possession of the car, has
the permission of the owner, holds a key to the car, and has
the right and ability to exclude others, except the owner, from
the car. See id.[5] The government notes that a driver has no legal right to
control or to possess a rental car in contravention of the lease
agreement. While it is true that an unauthorized driver may be
in violation of the rental agreement, we have previously held
that a privacy interest exists even if a defendant is in technical
5440 UNITED STATES v. THOMAS
violation of a leasing contract. For example, in United States
v. Henderson, 241 F.3d 638, 647 (9th Cir. 2001), we held that
the lessee of a rental car has a reasonable expectation of pri-
vacy in it, even after the lease period expires, as long as the
lessee retains possession and control over the car. See also
United States v. Cooper, 133 F.3d 1394, 1398-1402 (11th Cir.
1998) (holding that defendant has standing to challenge
search of a rental car after lease period expired). Similarly, we
have noted that “the mere expiration of the rental period, in
the absence of affirmative acts of repossession by the lessor,
does not automatically end a lessee’s expectations of privacy”
in a motel room. United States v. Dorais, 241 F.3d 1124, 1129
(9th Cir. 2001); see also United States v. Owens, 782 F.2d
146, 150 (10th Cir. 1986) (motel guest has a right to privacy
that continues after check-out time). Under Henderson, it can-
not be said that a defendant’s privacy interest is dependent
simply upon whether the defendant is in violation of the terms
of his lease agreement.
[6] Thus, we must reject the government’s contention that
a defendant not listed on a lease agreement lacks standing to
challenge a search. Based on Portillo, Jones, Dorais, and
Henderson, we cannot base constitutional standing entirely on
a rental agreement to which the unauthorized driver was not
a party and may not capture the nature of the unauthorized
driver’s use of the car. See Rakas, 439 U.S. at 143 (stating
that “arcane distinctions developed in property and tort law
. . . ought not . . . control” the reasonableness of an expecta-
tion of privacy (citing Jones, 362 U.S. at 266)). Rather, an
unauthorized driver who received permission to use a rental
car and has joint authority over the car may challenge the
search to the same extent as the authorized renter. This
approach is in accord with precedent holding that indicia of
ownership—including the right to exclude others—coupled
with possession and the permission of the rightful owner, are
sufficient grounds upon which to find standing. Jones, 362
U.S. at 266; Portillo, 633 F.2d at 1317.
UNITED STATES v. THOMAS 5441
[7] Therefore, we agree with the Eighth Circuit: An unau-
thorized driver may have standing to challenge a search if he
or she has received permission to use the car.
C
[8] Thomas, an unauthorized driver, only has standing to
challenge the search of a rental automobile if he received per-
mission to use the rental car from the authorized renter,
McGuffey. See Rawlings v. Kentucky, 448 U.S. 98, 104
(1980) (defendant has the burden of proving a legitimate
expectation of privacy). Here, it is undisputed that Thomas
failed to show that he received McGuffey’s permission to use
the car. Therefore, the district court properly concluded that
Thomas lacks standing to challenge the search.9
III
Thomas asserts that the district court made four errors in sen-
tencing.10 First, he contends that the district court misapplied
U.S.S.G. § 4B1.1(b) by wrongly construing the definition of
an “Offense Statutory Maximum.” Second, Thomas contends
that the district court improperly applied U.S.S.G. § 4B1.1(b)
by considering offenses to which Thomas neither admitted
nor had been proven to a jury beyond a reasonable doubt.
Third, Thomas contends, solely in his Reply Brief, that the
9
Because Thomas lacked standing to challenge the search, we need not
consider whether the search was proper under the automobile exception,
Maryland v. Dyson, 527 U.S. 465, 465-66 (1999) (per curiam), or whether
the discovery of the drugs was inevitable, Nix v. Williams, 467 U.S. 431,
444 (1984).
10
A sentence imposed pursuant to the Sentencing Reform Act, post-
Booker, is reviewed for reasonableness. United States v. Booker, 125
S. Ct. 738, 765-56 (2005); United States v. Ameline, 409 F.3d 1073, 1085
(9th Cir. 2005) (en banc). This court reviews the interpretation and appli-
cation of the guidelines de novo. United States v. Nielsen, 371 F.3d 574,
582 (9th Cir. 2004). Factual findings in the sentencing phase are reviewed
for clear error. Id. at 582.
5442 UNITED STATES v. THOMAS
district court enhanced his sentence based on judge-found
facts. Fourth, Thomas suggests, again only in his Reply Brief,
that the district court erred by not advising him that he had the
right to have a jury determine drug quantity beyond a reason-
able doubt.
A
[9] Under the Career Offender sentencing provision,
U.S.S.G. § 4B1.1(b), a career offender is assigned an offense
level based on the “Offense Statutory Maximum” for the
offense of conviction. Thomas argues that Blakely v. Wash-
ington, 542 U.S. 296, 303-04 (2004), redefines “statutory
maximum” as the maximum sentence a judge can impose
based solely on the facts as found by the jury or admitted by
the defendant. Thus, Thomas contends that the “statutory
maximum” should be “based upon the standard guideline
range for the offense.”
[10] However, according to § 4B1.1 application note 2, the
term “Offense Statutory Maximum” instead “refers to the
maximum term of imprisonment authorized for the offense of
conviction that is a crime of violence or controlled substance
offense.” U.S.S.G. § 4B1.1, cmt. n. 2. The application note
defines “Offense Statutory Maximum” as the maximum term
authorized by the statute for the offense of conviction, not, as
Thomas suggests, as the maximum penalty which the defen-
dant could receive under his unique circumstances. Further,
the career offender provision involves a determination of the
crime’s maximum potential punishment, a definition of “stat-
utory maximum” that Blakely did not affect. See United States
v. Murillo, 422 F.3d 1152, 1155 (9th Cir. 2005), cert. denied,
2006 WL 849747 (2006) (noting that Blakely “involved the
‘maximum sentence’ a judge may impose based on the jury’s
verdict or the defendant’s admissions,” but does not “modify
a crime’s potential punishment”); see also id. (noting that the
categorization of predicate offenses based on the statutory
maximum, rather than the guidelines maximum, “faces none
UNITED STATES v. THOMAS 5443
of the Sixth Amendment concerns that prompted the . . .
Blakely decision”).
[11] Thomas pled guilty to a charge under 21 U.S.C.
§ 841(a)(1), a class B felony carrying a statutory maximum of
30 years under 21 U.S.C. § 841(b)(1)(C). The offense statu-
tory maximum was, therefore, 30 years. The sentence under
§ 4B1.1 was proper.
B
Next, Thomas argues that the district court wrongly used
the fact of a prior conviction to increase his sentence, even
though he had not admitted to any of the prior convictions and
they were not proven to a jury. Thomas argues that
Almendarez-Torres v. United States, 523 U.S. 224, 244
(1998), holding that the fact of a prior conviction need not be
proven to a jury, may not remain good law after Blakely. We
rejected this argument in United States v. Weiland, 420 F.3d
1062, 1079 (9th Cir. 2005), cert. denied 2006 WL 219971(2006), and do so again here.
C
[12] Thomas next contends that the district court improp-
erly enhanced his sentence on the basis of judge-found facts.
The district court did not, however, determine the drug quan-
tity; this amount was stipulated to in the plea agreement—to
which, of course, Thomas agreed—which stated that, "Offi-
cers seized 490.3 grams of powder cocaine and 25.1 grams of
heroin from the trunk of the car." The district court did not
commit any error in sentencing Thomas on the basis of facts
to which he admitted.
D
Thomas’s final contention is that the district court erred by
failing to inform him of his right to have a jury determine the
5444 UNITED STATES v. THOMAS
drug quantity beyond a reasonable doubt. This argument was
also not presented in Thomas’s opening brief and therefore is
waived. Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d
912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically
and distinctly argued and raised in a party’s opening brief are
waived.”).
IV
Thomas contends that he is entitled to a remand under
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc).11 The government disagrees, and asserts that comments
made by the district court indicate that the court would have
imposed the same sentence had the Guidelines been advisory.
Specifically, the district court stated that, “I had some consid-
eration about whether or not you shouldn’t be sentenced to a
sentence greater than the low end . . . .” Based on this remark,
the government urges that Thomas is not entitled to a remand.
[13] To be eligible for an Ameline remand, Thomas “must
demonstrate a reasonable probability that he would have
received a different sentence had the district judge known that
the sentencing guidelines were advisory.” Id. at 1078. We do
not take the district court’s comment to be an unambiguous
pronouncement that it would have entered an identical sen-
tence had the Guidelines been advisory. In the end, the district
court gave the defendant the minimum sentence (188 months,
for a sentence range of 188 to 235 months). Given that the
district court considered and explicitly rejected the option of
giving Thomas a longer sentence and instead selected the stat-
utory minimum sentence, we cannot say with certainty that
Thomas would have received an identical sentence—rather
11
Thomas did not object to the imposition of a Guideline sentence, so
any error under United States v. Booker, 543 U.S. 220 (2005), is unpre-
served and is reviewed for plain error. Ameline, 409 F.3d at 1078.
UNITED STATES v. THOMAS 5445
than one below the Guidelines minimum—had the district
court known that the Guidelines were advisory.12
[14] In sum, it is impossible to determine definitively
whether there was any prejudicial error in the sentencing.
Under the circumstances, a limited Ameline remand is neces-
sary.
V
For the foregoing reasons, the decision of the district court
is AFFIRMED in part and REMANDED pursuant to Ameline.
12
If that were not enough, later in the sentencing, the district court
remarked that, “I don’t agree with the length of sentences or mandatory
minimums that are involved in many occasions, but they’re the law.” The
fact that the district court expressed some reservations about mandatory
minimum sentences compounds the likelihood that the defendant’s sub-
stantial rights were violated.