United States v. Perez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30161
Plaintiff-Appellee, D.C. No.
v.  CR-04-00013-
ALBERT TITO PEREZ, 1-DWM
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 8, 2006*
Portland, Oregon
Filed January 31, 2007
Before: Jerome Farris, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
1141
UNITED STATES v. PEREZ 1143
COUNSEL
John P. Rhodes, Esq., Assistant Federal Defender, Federal
Defenders of Montana, Missoula, Montana, for the defendant-
appellant.
Timothy J. Racicot, Assistant United States Attorney, Office
of the United States Attorney, Missoula, Montana, for the
plaintiff-appellee.
OPINION
BEA, Circuit Judge:
After United States v. Booker, 543 U.S. 220 (2005), we
adopted a limited remand procedure for certain cases in which
the defendant had failed to object to the use of mandatory sen-
tencing guidelines. Specifically, in cases where the record of
trial is insufficient for us to determine whether the district
court would have imposed a different sentence had it known
the sentencing guidelines were advisory, we now require a so-
called “limited Ameline remand.” See United States v. Ame-
line, 409 F.3d 1073 (9th Cir. 2005) (en banc). Under such a
remand, the district court is given the opportunity to consider
whether it would have imposed the same sentence had the
guidelines been only advisory at the time of initial sentencing.
If the district court decides it would have imposed the sen-
tence regardless of the now-advisory nature of the guidelines,
the sentence stands. If the district court decides the sentence
would not have been the same, then a full re-sentencing will
take place. Id. at 1079, 1084-85.
However, where the trial record is sufficient for us to deter-
mine that but for the mandatory nature of sentencing guide-
lines pre-Booker there is a reasonable probability the sentence
would have been different, the sentence is vacated and the
1144 UNITED STATES v. PEREZ
case remanded for a full re-sentencing; a “limited Ameline
remand” is not the correct result. See United States v. Beau-
dion, 416 F.3d 965, 970 (9th Cir 2005); Ameline, 409 F.3d at
1083 (“[T]he limited remand is invoked only when it cannot
be determined from the record whether the judge would have
imposed a materially different sentence had he known that the
Guidelines are advisory rather than mandatory.”)
On a previous appeal in this case, we found the trial record
sufficient to “conclude from the district court’s comments at
Perez’ sentencing hearing that there is a reasonable probabil-
ity that [Perez] would have received a different sentence had
the district judge known that the sentencing guidelines were
advisory” and remanded for a full re-sentencing. United
States v. Perez, 142 F. App’x 305, 305-06 (9th Cir. 2005)
(unpublished memorandum disposition) (internal quotation
marks and citation omitted). Rather than do just that, the trial
court took it upon itself to perform a “limited Ameline
remand” and ratified the original sentence without the benefit
of the new, full re-sentencing we had found necessary. It
should not have done so.
Facts
In 2004, Albert Tito Perez (“Perez”) pleaded guilty to con-
spiracy to distribute methamphetamine, distribution of
methamphetamine, and money laundering. Perez was sen-
tenced to a term of 70 months imprisonment. Perez appealed,
requesting re-sentencing under United States v. Booker, 543
U.S. 220 (2005).
On appeal, we held:
We vacate and remand for re-sentencing under the
post-Booker advisory guidelines because Perez
requested a remand and we conclude from the dis-
trict court’s comments at Perez’ sentencing hearing
that there is a “reasonable probability that [Perez]
UNITED STATES v. PEREZ 1145
would have received a different sentence had the dis-
trict judge known that the sentencing guidelines
were advisory.” United States v. Beaudion, 416 F.3d
965, 970 (9th Cir. 2005).
Sentence VACATED and REMANDED.
Perez, 142 F. App’x at 305-06 (unpublished memorandum
disposition).
On remand, the district court scheduled a sentencing hear-
ing for November 2, 2005. The re-sentencing hearing was res-
cheduled for February 16, 2006 because Perez was
hospitalized with valley fever.
On January 13, 2006, because Perez remained hospitalized,
Perez filed an unopposed motion to reschedule the re-
sentencing hearing. Rather than reschedule the re-sentencing
hearing, the district court, without soliciting the views of
counsel, entered the following order:
This case was remanded from the Ninth Circuit
Court of Appeals for limited review under United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc). See United States v. Garibay-Garibay, 141
Fed. Appx. 664 (9th Cir. 2005). After a review of the
record, I conclude that the sentence imposed would
not have been materially different had I known the
United States Sentencing Guidelines were advisory.
Therefore, the Defendant will not be resentenced and
the Judgment imposed on October 15, 2004 remains
in full force and effect. Accordingly, the resentenc-
ing hearing set for February 16, 2006 is vacated.
Dist. Ct. Order, Feb. 2, 2006.
Standard of Review
This court “review[s] de novo a district court’s compliance
with the mandate of an appellate court.” United States v. Kel-
lington, 217 F.3d 1084, 1092 (9th Cir. 2000).
1146 UNITED STATES v. PEREZ
Analysis
[1] Did the district court have the power (sometimes called
“jurisdiction”) to conclude as it did, without a full re-
sentencing including an opportunity for the defendant to
address the court, i.e., an allocution? To decide that, we look
to what this court told the district court to do when we
returned the case: the rule of mandate.1 See id. at 1092. “Ac-
cording to the rule of mandate, although lower courts are
obliged to execute the terms of a mandate, they are free as to
anything not foreclosed by the mandate, and, under certain
circumstances, an order issued after remand may deviate from
the mandate if it is not counter to the spirit of the circuit
court’s decision.” Id. at 1092-93 (internal quotation marks,
citations, and alterations omitted).
[2] “[T]he ultimate task is to distinguish matters that have
been decided on appeal, and are therefore beyond the juris-
diction of the lower court, from matters that have not[.]” Id.
at 1093 (emphasis added).2 In doing so, we consider “the
opinion the mandate purports to enforce as well as the proce-
dural posture and substantive law from which it arises.” Id.
1
“The rule of mandate is similar to, but broader than, the law of the case
doctrine. The rule of mandate requires a lower court to act on the mandate
of an appellate court, without variance or examination, only execution.”
United States v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006), cert.
denied, 127 S. Ct. 319 (2006) (internal quotation marks and citations omit-
ted).
2
“When a case has once been decided by this court on appeal, and
remanded to the [district] court, whatever was before this court, and dis-
posed of by its decree, is considered as finally settled. The [district] court
is bound by the decree as the law of the case, and must carry it into execu-
tion according to the mandate. That court cannot vary it, or examine it for
any other purpose than execution; or give any other or further relief; or
review it, even for apparent error, upon any matter decided on appeal; or
intermeddle with it, further than to settle so much as has been remanded.”
Kellington, 217 F.3d at 1093 (quoting In re Sanford Fork & Tool Co., 160
U.S. 247, 255 (1895)).
UNITED STATES v. PEREZ 1147
Here, such consideration leads us to hold the district court
erred in conducting a limited Ameline remand because a lim-
ited Ameline remand was ruled out by our decision that “there
is a reasonable probability that [Perez] would have received
a different sentence had the district judge known that the sen-
tencing guidelines were advisory.” Perez, 142 F. App’x at 306
(emphasis added) (internal quotation marks and citations
omitted).
[3] As our memorandum disposition resolving Perez’s first
appeal established, the record on Perez’s first appeal was,
unlike the more frequent case where the record is not determi-
native, sufficient to permit us to make a determination regard-
ing the third prong of plain error analysis3 of Perez’s
unpreserved Booker error. See Perez, 142 F. App’x at 305-06.
We held Perez satisfied his burden to “demonstrate a reason-
able probability that he would have received a different sen-
tence had the district judge known that the sentencing
guidelines were advisory.” Ameline, 409 F.3d at 1078
(emphasis added). Accordingly, under the rule of mandate,
the conduct of a limited Ameline remand was squarely fore-
closed because we specifically addressed and resolved the
issue: the record was sufficient to determine Perez met his
burden as to the third prong of clear error analysis.
[4] Nevertheless, when Perez’s re-sentencing hearing was
twice delayed, the district court sua sponte converted our
remand for a full re-sentencing into a limited Ameline remand
and concluded that the sentence imposed would not have been
materially different had the district court known the sentenc-
ing guidelines were advisory. See Dist. Ct. Order, Feb. 2,
2006. Under the rule of mandate, this was jurisdictional error
3
Plain error is “(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Cotton, 535 U.S. 625, 631 (2002) (citation, alter-
ation and internal quotation marks omitted). Here, the third prong was
whether the application of mandatory sentencing guidelines affected the
outcome of Perez’s sentencing. See Ameline, 409 F.3d at 1078.
1148 UNITED STATES v. PEREZ
because that factual question was settled on appeal and, there-
fore, the district court was not free to “review it, even for
apparent error.” In re Sanford Fork & Tool Co., 160 U.S. 247,
255 (1895).
The Government argues that any error was harmless. It may
turn out that after a full re-sentencing, to include defendant’s
allocution, the district court decides the initial sentence was
indeed proper and imposes it again. We will not prejudge that
result; but neither should have the district court. Further, we
have “never held that the failure to follow instructions on
remand might be subject to inquiry into the harmlessness of
that error,” United States v. Montgomery, 462 F.3d 1067,
1072 n.3 (9th Cir. 2006), and we decline to begin doing so
here.
Conclusion
[5] For the foregoing reasons, we vacate and remand for a
full re-sentencing under post-Booker advisory guidelines.
Sentence VACATED and REMANDED.