United States v. Robert F. Combs , 470 F.3d 1294 ( 2006 )

KOZINSKI, Circuit Judge:

We consider two questions left unanswered by United States v. Ameline, 409 F.3d 1073 (9th Cir.2005):(1) By what standard do we review a district court’s determination that a defendant’s sentence would not have been materially different, had it known that the Guidelines were advisory rather than mandatory? And, (2) may a defendant raise new claims of error during the course of an Ameline remand?

Facts

Defendant was sentenced during the interregnum between Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the tortured posture of his case illustrates the difficulties the courts of appeals have faced in reviewing such sentences. Defendant was convicted on four counts relating to his involvement in a methamphetamine operation and sentenced to 168 months, a sentence at the low end of the Guidelines range. He appealed on the sole ground that the district court erred in denying his motion to suppress certain evidence. We affirmed in an opinion filed the day before Booker was handed down. See United States v. Combs, 394 F.3d 739 (9th Cir.2005). Defendant petitioned for rehearing, claiming Booker error because the district judge had acted under the misapprehension that the Guidelines were mandatory rather than advisory. Because defendant had not raised a sentencing claim below, this belated claim could be reviewed — if at all — only for plain error. We therefore amended our opinion to include a remand to the district court for a determination of whether the error was prejudicial, as directed by Ameline. See United States v. Combs, 412 F.3d 1020 (9th Cir.2005). At no time during his first appeal did defendant challenge the reasonableness of his sentence. Our ruling today applies only to defendants in Combs’s particular situation.

On remand, the district court invited the parties to file memoranda addressing whether resentencing was warranted. Combs argued that the pre-Booker sentencing statute had precluded the district judge from ordering the sentence that would best serve the policy goals of 18 U.S.C. § 3553(a), and asked to be resen-fenced. After reviewing the parties’ submissions, the judge concluded that “it does not appear that advisory guidelines would have resulted in a materially different sentence than Combs received under the mandatory guidelines.”

Defendant also first raised what we will call the “new claims” — that the district court’s use of the preponderance standard in finding facts that enhanced the Guidelines calculation violated his due process rights; and that the district court’s reliance on hearsay evidence at sentencing violated his Confrontation Clause rights. The district court questioned whether the new claims were properly presented to it, but, assuming they were, rejected both.

On appeal, defendant challenges the district court’s rulings on the new claims as well as its determination that defendant’s sentence would have been the same under an advisory Guidelines system.

Analysis

1. We first consider whether the district court erred in refusing to resentence defendant after finding that the sentence imposed during the original sentencing proceeding would not have differed materially, had the judge known the Guidelines were advisory. Defendant claims that the judge failed to consider each of the section 3553(a) factors, in particular sections 3553(a)(1), which directs the district court to consider the “history and characteristics of the defendant,” and 3553(a)(2)(D), which outlines the goal of “provid[ing] the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” Defendant argues that the district court ignored these provisions by failing to take into account information regarding his educational and vocational skills, mental and emotional conditions, drug and alcohol dependence, and lack of guidance as a youth.

This argument requires us to consider an issue of first impression: By what standard do we review a district court’s determination, made during the course of an Ameline remand, that it would have imposed the same sentence under an advisory Guidelines system? The only guidance Ameline gives is that, when the district judge determines that defendant’s sentence would not have been materially different, “the original sentence will stand, subject to appellate review for reasonableness.” 409 F.3d at 1074-75.

We read the first part of this statement — that the sentence “will stand” — as meaning that the district court’s determination of prejudice is effectively unreviewable. Insofar as this inquiry relates to the district judge’s representation as to his own state of mind, such absolute deference is inevitable. However, Ameline goes on to say that, even where the district judge decides to stick with the original sentence on remand, we review that sentence for “reasonableness.” Id. at 1074-75. This suggests there is something for us to review even after the judge has found that the sentence he imposed pre-Booker would not differ materially from the sentence he would have imposed under a post-Booker regime. We do not read this to be the same as the reasonableness review we conduct on post -Booker sentences. See, e.g., United States v. Mohamed, 459 F.3d 979, 984-85 (9th Cir.2006). Such full-blown reasonableness review presupposes that the judge sentenced defendant under a post-Booker regime, where the judge must take into account all the factors enumerated in 18 U.S.C. § 3553(a). A limited Ame-line remand — a term Ameline uses no fewer than 25 times — does not contemplate that the district judge will engage in a full post -Booker resentencing, unless he first determines that the sentence would have been materially different under an advisory Guidelines system. Where the district judge determines that he would have imposed the same sentence, defendant’s plain error claim will have failed for lack of prejudice, and defendant would not seem entitled to review of his sentence at all.

Somewhat incongruously, however, Ameline allows for appeal of the re-imposed sentence and instructs us to review that sentence for “reasonableness.” And, indeed, there is an issue we can consider that bears on the reasonableness of the sentence: Whether the district judge properly understood the full scope of his discretion in a post-Booker world. After all, the district judge’s determination that he would have imposed the same sentence after Booker is only meaningful if he understood his powers and responsibilities under an advisory Guidelines system. A more demanding inquiry would turn every Ameline remand into a full-blown resen-tencing, and would thus be contrary to Ameline’s central holding that defendants whose sentences are being reviewed for plain error are entitled only to a limited remand.

The record here discloses that the judge understood his post-Soo&er authority to impose a non-Guidelines sentence and that his ultimate determination was therefore not infected by ignorance or a misapprehension of the law. As we instructed in Ameline, the district judge gave the parties the opportunity to present argument both as to the scope of his post-Booker sentencing discretion and as to whether the facts of defendant’s case warranted a sentence outside the Guidelines range. See Ameline, 409 F.3d at 1085; United States v. Montgomery, 462 F.3d 1067, 1072 (9th Cir.2006). The judge then issued an order, reimposing the original sentence, which concluded as follows: “[I]t does not appear that advisory guidelines would have resulted in a materially different sentence than Combs received under the mandatory guidelines.” While the district court used the judicial passive voice, not the active first person that the dissent would prefer, this is a matter of style, not substance. The district judge clearly indicated that he would not have imposed a materially different sentence under an advisory Guidelines system. His decision to stick with the original sentence was therefore reasonable as we understand Ameline to have used that term.

2. We now turn to whether the district court had authority to consider defendant’s new claims. As already noted, defendant appeared before the district court on a limited remand — a remand designed to answer a single question: Whether the district judge would have given defendant a materially different sentence under an advisory Guidelines system. This limited remand gave the district judge no authority to re-sentence defendant unless he first answered the question posed to him in the affirmative. Once the judge answered the question in the negative, his task was complete. The limited remand procedure left no room for the district judge to consider new objections to the original sentence — objections defendant could have raised the first time around, but failed to do so. Because the district judge failed to modify his original sentence in light of these new objections, he acted precisely as Ameline contemplated and we must affirm.

AFFIRMED.