United States v. Ameline

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 02-30326
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00011-SEH
ALFRED ARNOLD AMELINE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted En Banc
March 24, 2005—San Francisco, California
Filed June 1, 2005
Before: Mary M. Schroeder, Chief Judge,
Diarmuid F. O’Scannlain, Michael Daly Hawkins,
Sidney R. Thomas, Kim McLane Wardlaw,
William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,
Johnnie B. Rawlinson, Richard R. Clifton, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Rawlinson;
Partial Concurrence and Partial Dissent by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Gould;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Bea
6345
UNITED STATES v. AMELINE 6349
COUNSEL
Steven Hubacheck, Federal Defenders of San Diego, San
Diego, California, for the defendant-appellant.
6350 UNITED STATES v. AMELINE
Michael R. Dreeben, Esq., United States Department of Jus-
tice, Washington, DC, for the plaintiff-appellee.
Anthony R. Gallagher, Esq., Assistant Federal Public
Defender, Great Falls, Montana, for amicus curiae Federal
Public and Community Defenders.
OPINION
RAWLINSON, Circuit Judge:
This case requires us to apply the United States Supreme
Court’s ruling in United States v. Booker, 125 S. Ct. 738
(2005). In Booker, the Supreme Court struck down the sen-
tencing scheme created by the Sentencing Reform Act of
1984 to the extent that the Act mandated the imposition of
sentences predicated on facts not found by the jury or admit-
ted by the defendant. To remedy the constitutional infirmity,
the Court severed the mandatory portions of the Act, render-
ing its sentencing provisions, including the Sentencing Guide-
lines, effectively advisory. Left unresolved by Booker is the
question of what relief, if any, is to be afforded to a defendant
who did not raise a Sixth Amendment challenge prior to sen-
tencing. We reheard this case en banc to address this issue for
cases pending on direct review.
We are aware that our opinion is of considerable interest to
the judges and practitioners in this Circuit who will face a
myriad of issues post-Booker. We will not endeavor to foresee
or address all potential ramifications of the Booker decision.
However, we think it appropriate to amplify the context
within which we decide this case in the hope of facilitating
the resolution of pending cases.
We are, of course, not the only court of appeals to confront
this issue. Our colleagues across the country have also wres-
UNITED STATES v. AMELINE 6351
tled with the aftermath of Booker. The difficulty of the matter
is demonstrated by the fact that the various circuits have taken
divergent approaches. We appreciate and have benefitted
from their discussions in arriving at our own conclusion.
As described in more detail below, we hold that when we
are faced with an unpreserved Booker error that may have
affected a defendant’s substantial rights, and the record is
insufficiently clear to conduct a complete plain error analysis,
a limited remand to the district court is appropriate for the
purpose of ascertaining whether the sentence imposed would
have been materially different had the district court known
that the sentencing guidelines were advisory. If the district
court responds affirmatively, the error was prejudicial and
failure to notice the error would seriously affect the integrity,
fairness and public reputation of the proceedings. The original
sentence will be vacated by the district court, and the district
court will resentence the defendant. If the district court
responds in the negative, the original sentence will stand, sub-
ject to appellate review for reasonableness. See Booker, 125
S. Ct. at 769. In essence, we elect to follow the approach
adopted by the Second Circuit in United States v. Crosby, 397
F.3d 103 (2d Cir. 2005).
I.
Factual Background
Defendant Alfred Ameline pled guilty to knowingly con-
spiring to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. The plea agreement approved
by the court did not specify the quantity of methamphetamine
involved, although at his change of plea hearing Ameline
admitted that “some methamphetamine” was involved in the
charged conduct. Ameline disputed the government’s asser-
tion that the amount of methamphetamine attributable to him
was one and one-half kilograms.
6352 UNITED STATES v. AMELINE
The Presentence Report (PSR) prepared by the Probation
Office attributed 1,079.3 grams of methamphetamine to Ame-
line. That amount resulted in a base offense level of 32, after
applying the drug equivalency table from the United States
Sentencing Guidelines Manual (Guidelines) § 2D1.1(c). The
probation officer’s conclusion as to drug quantities was based
solely on the investigative reports the officer had reviewed,
and the PSR contained a summary of the salient portions of
the reports. A two-level enhancement was recommended pur-
suant to § 2D1.1(b)(1) for possession of a firearm in connec-
tion with the charged offense, resulting in an adjusted offense
level of 34. With the recommended three-level adjustment for
acceptance of responsibility, the recommended total offense
level was 31. With a criminal history category of I, the sen-
tencing range recommended in the PSR was 108 months to
135 months.
Ameline filed objections to the PSR, challenging the
amount of drugs attributed to him. He also denied the truth of
the firearm allegations. However, he did not challenge the
recommended drug quantity enhancement as violative of the
Sixth Amendment. The probation officer dismissed Ameline’s
objections and reaffirmed his determination of the quantity of
methamphetamine in the original PSR and his recommenda-
tion as to the weapons enhancement. Ameline objected to the
final PSR finding in his sentencing memorandum to the court.
At the beginning of the sentencing hearing, before any wit-
nesses were called, the district judge informed the parties how
he intended to proceed:
It is the position of this court in this matter, as it is
in all such cases, that the facts as recited in the pre-
sentence report are prima facie evidence of the facts
set out there; that if the defendant challenges the
facts set forth in the presentence report, it is the bur-
den of the defendant to show that the facts contained
UNITED STATES v. AMELINE 6353
in the report are either untruthful, inaccurate, or oth-
erwise unreliable.
The district judge then asked defense counsel to call his
first witness. However, before counsel called any witnesses,
the court again reiterated its intention:
[I]t is my position that the statements in the presen-
tence report, that is, statements of fact, are reliable
on their face and prima facie evidence of the facts
there stated. And I will be taking those into account
to the extent relevant to the obligations that I have in
fashioning sentence and fixing responsibility for
drug quantities, if they are not overcome by other
evidence presented at this hearing. Be guided
accordingly.
Consistent with his objections, Ameline testified and pre-
sented witnesses to refute the drug amounts attributed to him
in the PSR. The government contended that an even larger
amount of drugs should be attributed to Ameline, based on
transactions not included in the PSR recommendation. No
specific testimony was directed toward the firearm enhance-
ment.
At the conclusion of the sentencing hearing, the district
court found that 1,603.60 grams of methamphetamine were
attributable to Ameline. That finding resulted in a base
offense level of 34, two levels higher than that recommended
in the PSR. The PSR described two additional transactions,
but the probation officer did not include those transactions in
calculating the recommended drug amount. The district court,
however, included the amounts involved in the described
transactions, thus establishing a higher base offense level. The
district court stated:
I should let all parties know that all findings are
based upon a preponderance of the evidence stan-
6354 UNITED STATES v. AMELINE
dard and are established at least to that standard in
the view of the court.
The district court found the § 2D1.1(b)(1) weapons
enhancement “undisputed,” and applied a two-level enhance-
ment for an offense level of 36, but deducted three points for
timely acceptance of responsibility, for a total offense level of
33. The district court sentenced Ameline to 150 months, in the
middle of the 135 to 168-month Guidelines range.
Ameline appealed. In his opening brief, Ameline chal-
lenged the district court’s allocation of the burden of proof
and the reliability of the hearsay evidence used to prove drug
quantity. Ameline did not initially contest the preponderance
of the evidence standard employed by the district court or the
propriety of judicial factfinding under a mandatory sentencing
regime.
After the case was submitted for decision by a three-judge
panel of our court, but before a decision was filed, the
Supreme Court announced its decision in Blakely v. Washing-
ton, 124 S. Ct. 2531 (2004). In light of Blakely, our panel held
that the determination of material sentencing facts by the dis-
trict judge under a preponderance of the evidence standard,
rather than by a jury as part of its verdict, violated Ameline’s
Sixth Amendment rights and amounted to reversible plain
error. United States v. Ameline [Ameline I], 376 F.3d 967, 980
(9th Cir. 2004). The panel vacated Ameline’s sentence and
remanded with instructions that, if necessary, a jury must
determine the amount of drugs attributable to Ameline and
whether he possessed a weapon in connection with the
offense. Id. at 983.
Within days of the filing of the panel decision in Ameline
I, the Supreme Court granted certiorari and scheduled oral
argument in Booker and a related case, United States v. Fan-
fan, 125 S. Ct. 12 (2004). Booker and Fanfan raised issues
regarding the application of Blakely to federal sentencing.
UNITED STATES v. AMELINE 6355
That led our court to defer further action on this case until
after the Supreme Court announced its decision in those cases.
After the Supreme Court’s decision in Booker was
announced, the panel issued an amended opinion. United
States v. Ameline [Ameline II], 400 F.3d 646 (9th Cir. 2005).
As before, the panel concluded that the district court had com-
mitted reversible plain error because Ameline’s sentence “ex-
ceeded ‘the maximum authorized by the facts established by
a plea of guilty or a jury verdict.’ ” Id. at 653 (quoting
Booker, 125 S. Ct. at 756). The panel vacated the original sen-
tence and remanded for resentencing. Id. at 657-58.
We vacated the panel opinion and granted rehearing en
banc. United States v. Ameline, 401 F.3d 1007 (9th Cir. 2005).
Although Ameline did not challenge the constitutionality of
the Guidelines in the district court or in his opening brief on
appeal, we conclude, as did the three-judge panel, that it is
nonetheless appropriate to permit him to raise those issues.
See United States v. Valdez, 195 F.3d 544, 547 n.3 (9th Cir.
1999).
II.
The Booker Decision
Before Booker, sentencing judges were bound by the
Guidelines. See 18 U.S.C. § 3553(b)(1). After conviction, the
Guidelines required the sentencing judge to make factual find-
ings about the defendant and the offense and then, based on
the conviction and facts found independently by the court,
determine the appropriate sentencing range. Once the correct
sentencing range was determined, departure from that range
was authorized only for reasons stated in the Guidelines or
where
the court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not
6356 UNITED STATES v. AMELINE
adequately taken into consideration by the Sentenc-
ing Commission in formulating the guidelines that
should result in a sentence different from that
described.
18 U.S.C. § 3553(b)(1).
[1] In Booker, the Supreme Court held that the Guidelines
as constituted violated the Sixth Amendment. Booker, 125
S. Ct. at 756. That outcome followed from the conclusion that
the Sixth Amendment precludes a judge from enhancing a
sentence based on extra-verdict findings (other than the fact
of prior conviction) in a mandatory sentencing regime. Id. at
748-49. The majority opinion, authored by Justice Stevens,
observed that “[i]f the Guidelines as currently written could
be read as merely advisory provisions that recommended,
rather than required, the selection of particular sentences in
response to differing sets of facts, their use would not impli-
cate the Sixth Amendment.” Id. at 750. Therefore, if a particu-
larly prescient sentencing judge, pre-Booker, had made and
used the same extra-verdict findings under the same manda-
tory guidelines regime, but made clear that he was treating the
Guidelines as advisory rather than binding, no Sixth Amend-
ment violation would have occurred under Booker. See id.
(“[W]hen a trial judge exercises his discretion to select a spe-
cific sentence within a defined range, the defendant has no
right to a jury determination of the facts that the judge deems
relevant.”); see also United States v. Coles, 403 F.3d 764, 768
(D.C. Cir. 2005); United States v. Paladino, 401 F.3d 471,
483 (7th Cir. 2005).
[2] A separate majority of the Court remedied the Sixth
Amendment infirmity in the federal sentencing scheme by
making the Guidelines effectively advisory. The remedial por-
tion of Booker, authored by Justice Breyer, agreed that “with-
out this provision—namely the provision that makes ‘the
relevant sentencing rules mandatory and imposes binding
requirements on all sentencing judges’—the statute falls out-
UNITED STATES v. AMELINE 6357
side the scope” of the Sixth Amendment’s jury trial require-
ment. Booker, 125 S. Ct. at 764 (citations and alteration
omitted). Rather than engraft a jury trial requirement onto the
mandatory sentencing guideline system, the remedial opinion
severed from the Reform Act “the provision that requires sen-
tencing courts to impose a sentence within the applicable
Guidelines range (in the absence of circumstances that justify
a departure) and the provision that sets forth standards of
review on appeal, including de novo review of departures
from the applicable Guidelines range.” Id. (citations omitted).
[3] It is crucial for our current purpose to appreciate the
distinction drawn by the Supreme Court and by us. Standing
alone, judicial consideration of facts and circumstances
beyond those found by a jury or admitted by the defendant
does not violate the Sixth Amendment right to jury trial. A
constitutional infirmity arises only when extra-verdict find-
ings are made in a mandatory guidelines system. This conclu-
sion has been reached by a majority of the appeals courts that
have decided Sixth Amendment sentencing issues post-
Booker. See United States v. Antonakopoulos, 399 F.3d 68, 75
(1st Cir. 2005); United States v. Williams, 399 F.3d 450, 458
(2d Cir. 2005); United States v. Mares, 402 F.3d 511, 518 (5th
Cir. 2005); Paladino, 401 F.3d at 482-83 (7th Cir.); United
States v. Pirani, No. 03-2871, 2005 WL 1039976, at *5 (8th
Cir. Apr. 29, 2005) (en banc); United States v. Lawrence, No.
02-1259, 2005 WL 906582, at *12 (10th Cir. Apr. 20, 2005);
United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.
2005); United States v. Smith, 401 F.3d 497, 499 (D.C. Cir.
2005) (per curiam).
III.
Application of the Plain Error Standard of Review
[4] As explained, because the Sixth Amendment error was
not raised in the district court, to warrant relief the error must
constitute plain error. Plain error is “(1) error, (2) that is plain,
6358 UNITED STATES v. AMELINE
and (3) that affects substantial rights.” United States v. Cot-
ton, 535 U.S. 625, 631 (2002) (citation, alteration and internal
quotation marks omitted). If these three conditions of the
plain error test are met, an appellate court may exercise its
discretion to notice a forfeited error that (4) “seriously affects
the fairness, integrity, or public reputation of judicial proceed-
ings.” Id. (citation and alteration omitted).1
[5] An error is plain if it is “contrary to the law at the time
of appeal . . .” Johnson v. United States, 520 U.S. 461, 468
(1997). Ameline’s claim of sentencing error meets this
requirement, because Booker expressly invalidated the federal
sentencing guidelines. See Booker, 125 S. Ct. at 755-56. The
sentencing judge’s enhancement of Ameline’s sentence in
reliance upon judge-made findings under the then-mandatory
guidelines, was, therefore, constitutional error. See id.
A more vexing inquiry lies in the third prong of the plain
error test: whether the error affected Ameline’s substantial
rights, that is, whether the outcome of Ameline’s sentencing
was affected by the erroneous enhancement of Ameline’s sen-
tence on the basis of judge-made findings in the mandatory
guidelines regime. Ameline bears the burden of persuading us
that his substantial rights were affected. He must establish
“that the probability of a different result is sufficient to under-
mine confidence in the outcome of the proceeding.” United
States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004)
(citations and internal quotation marks omitted). Because the
error turns on the use of judge-found facts in a mandatory
guidelines system and those guidelines are now advisory,
Ameline must demonstrate a reasonable probability that he
would have received a different sentence had the district
judge known that the sentencing guidelines were advisory.
1
A different analysis will apply when a defendant preserves his Sixth
Amendment claim by challenging the sentencing guidelines on constitu-
tional grounds before the district court. See Pirani, 2005 WL 1039976, at
*3-4; United States v. Fagans, No. 04-4845, 2005 WL 957187, at *2, (2d
Cir. Apr. 27, 2005); Antonakopoulos, 399 F.3d at 76.
UNITED STATES v. AMELINE 6359
[6] The difficulty in assessing whether the sentencing error
affected Ameline’s substantial rights arises because the record
does not provide an inkling of how the district court would
have proceeded had it known that the Guidelines were advi-
sory rather than mandatory. That is not surprising, since at the
time of sentencing, the district court and the parties were
operating under the reasonable belief that the Guidelines were
mandatory. We surmise that the record in very few cases will
provide a reliable answer to the question of whether the judge
would have imposed a different sentence had the Guidelines
been viewed as advisory. Although on occasion a district
court judge has expressed frustration with the binding nature
of the Guidelines, it was very rare for a judge, within the
record of an individual case, to express that view. Pre-Booker,
there simply would have been no need or practical reason for
the judge to make such a record, since the judge could not
have expected then that it would make a legal difference.
[7] We conclude that the best way to deal with this unusual
situation is to follow the approach adopted by our colleagues
on the Second, Seventh, and D.C. Circuits2 and ask the person
who knows the answer, the sentencing judge.3 Rather than
affirm a sentence that was unconstitutional and may have
been prejudicial, we elect to remand to the district court to
2
Crosby, 397 F.3d at 120 (2d Cir.); Paladino, 401 F.3d at 483-84 (7th
Cir.); Coles, 403 F.3d at 769-71 (D.C. Cir.). The Fifth Circuit has also
expressed openness to this approach. See United States v. Pennell, No. 03-
50926, 2005 WL 1030123, at *6 (5th Cir. May 4, 2005).
3
The district court judge who imposed the sentence in this case is still
a sitting federal judge. We recognize that in some cases the original sen-
tencing judge may no longer be available, due to death, disability or retire-
ment, but the number of such cases should be very low. The sentencing
judge’s unavailability will not necessarily result in an inability to proceed.
The record may reflect an admission that was undiscovered in the appel-
late process. There may be a negotiated sentence. The defendant may even
elect not to challenge his sentence on remand. Because the situation of an
unavailable judge is not before us, we leave that issue for resolution in a
case that presents that issue.
6360 UNITED STATES v. AMELINE
answer the question whether the sentence would have been
different had the court known that the Guidelines were advi-
sory. This is “[t]he only practical way (and it happens also to
be the shortest, the easiest, the quickest, and the surest way)
to determine whether” there was prejudice. Paladino, 401
F.3d at 483. If the district court responds affirmatively, the
error undermines our confidence in the outcome. See id. at
484. On the other hand, if the district court responds in the
negative and explains why on the record, the original sentence
will stand, provided it is reasonable. See id.; cf. Booker, 125
S. Ct. at 769 (holding that both the Sixth Amendment ruling
and the remedial interpretation of the Reform Act, including
the reasonableness standard, apply to all cases pending on
direct review). The remand contemplated under Crosby is a
limited one designed to permit the sentencing judge to inform
the reviewing court’s analysis of whether the sentencing judge
“would have imposed a materially different sentence” had he
been aware of the now-advisory nature of the sentencing
guidelines. Crosby, 397 F.3d at 117.
In Crosby, the Second Circuit relied on 18 U.S.C. § 3742(f)
to support its approach that a third choice is available for elec-
tion by an appellate court assessing error. Id. That subsection
provides in pertinent part:
If the court of appeals determines that—
(1) the sentence was imposed in violation of law
. . . the court shall remand the case for further sen-
tencing proceedings with such instructions as the
court considers appropriate . . .
18 U.S.C. § 3742(f)(1).
[8] The Second Circuit reasoned that the power to remand
for resentencing necessarily encompasses the lesser power to
order a limited remand. Crosby, 397 F.3d at 117. This is con-
sistent with our case law. As we recently explained in United
UNITED STATES v. AMELINE 6361
States v. Gunning, 401 F.3d 1145 (9th Cir. 2005), appellate
courts are not precluded from limiting the scope of issues on
remand, or the district court’s consideration of evidence and
arguments. Id. at 1148.
The Second Circuit viewed the limited remand as a solution
to the dilemma facing appellate courts post-Booker: in the
overwhelming majority of cases, we simply do not know
whether the sentencing judge would have imposed the same
sentence had he known that the sentencing guidelines were
advisory, rather than mandatory. As an alternative to presum-
ing prejudice, presuming non-prejudice, venturing to assess
prejudice on a case-by-case basis or engaging in wholesale
remands in cases where the record is not sufficiently devel-
oped to inform the appellate court’s plain error analysis, the
Second Circuit elected to remand to the district court. See
United States v. Gonzalez, No. 04-1956, 2005 WL 1023059,
at *3 (2d Cir. May 3, 2005) (citing Crosby, 397 F.3d at 117).
[9] We recognize that the Seventh and D.C. Circuits, while
endorsing limited remands in Booker cases, have adopted a
slightly different procedure from that in Crosby. Under the
Second Circuit approach, if a district court judge determines
that resentencing is warranted after remand from the court of
appeals, he or she can simply vacate the sentence and resen-
tence. Crosby, 397 F.3d at 120. The Seventh and D.C. Cir-
cuits, on the other hand, retain jurisdiction through the limited
remand process, thus requiring the district court to indicate
that it would have sentenced differently, the court of appeals
to vacate the sentence, and finally, the court of appeals to
remand to the district court for resentencing. Paladino, 401
F.3d at 484; Coles, 2005 WL 783069 at *7. The two proce-
dures are very similar, but the Crosby procedure is less cum-
bersome. See Paladino, 401 F.3d at 484 (“Our procedure is
not identical to that set forth in Crosby, though it is very
close.”); Coles, 2005 WL 783069 at *7 (D.C. Cir. Apr. 8,
2005) (“We note that the ‘limited remand’ procedures adopted
by the Second and Seventh Circuits offer slightly different
6362 UNITED STATES v. AMELINE
approaches.”). Booker itself does not require the appellate
court to undertake the additional step of vacating and remand-
ing if the district court indicates that it wishes to resentence.
Therefore, to facilitate the expeditious handling of Booker
cases, we follow the Second Circuit in not retaining jurisdic-
tion throughout the limited remand.
We acknowledge that this limited remand approach has not
been adopted by all courts to face the post-Booker problem.
Some circuits have held that when the reviewing court cannot
determine whether the Sixth Amendment error was prejudi-
cial, the defendant has not carried his burden and relief must
be denied. See Antonakopoulos, 399 F.3d at 80 (1st Cir.);
Mares, 402 F.3d at 521-22 (5th Cir.); Pirani, 2005 WL
1039976, at *6-7 (8th Cir.); Rodriguez, 398 F.3d at 1301
(11th Cir.). We do not quarrel with this position as a matter
of doctrine; that is the way plain error review normally works.
As we indicated above, however, assigning such a burden
to a defendant in this context requires him to demonstrate a
sufficient probability that the district court would have
imposed a different sentence under an advisory system, even
though there would have been no reason for the sentencing
court to so indicate. The sentencing court presumably knows
the answer to the relevant question and would likely have
made a record had it known at the time of sentencing that it
would make a difference. Resolving unpreserved sentencing
error through a limited remand is comparably easy and yields
a result that is certain. See Williams, 399 F.3d at 457-59. If we
decline to find out what the district court knows unless the
defendant can make a showing of something over which he
had no control, the defendant will surely feel abused, with
some justification, and everyone will be left to wonder about
whether the sentencing court might have acted differently. It
seems to us that would itself undermine the fairness, integrity
UNITED STATES v. AMELINE 6363
and public reputation of the judicial proceedings, something
which we should try to avoid.4
Other circuits have, like our own decision in Ameline II,
taken another approach. Notably, some have held that “where
a defendant’s sentence was enhanced based on facts neither
admitted to nor found by a jury, . . . the defendant can demon-
strate plain error and may be entitled to resentencing.” Davis,
2005 WL 976941, at *1 (3d Cir.); Hughes, 401 F.3d at 548-
49 (4th Cir.); Oliver, 397 F.3d at 379-80 (6th Cir.). Following
that reasoning, prejudice is determined by comparing the sen-
tence that the defendant could have received based solely on
the jury’s verdict (or on facts otherwise admitted by defen-
dant) with the sentence that he actually received. If the former
sentence would have been more favorable to the defendant,
the defendant was prejudiced. See, e.g., Hughes, 401 F.3d at
548-49. As discussed above, however, we view judicial fact-
finding as erroneous only when coupled with a mandatory
guidelines system. Moreover, upon remand the district court
will consult the guidelines as required by Booker and will be
free to impose exactly the same sentence. “[I]f the judge
would have imposed the same sentence even if he had thought
the guidelines merely advisory . . . and the sentence would be
lawful under the post-Booker regime, there is no prejudice to
the defendant.” Paladino, 401 F.3d at 483; accord Williams,
399 F.3d at 459; Antonakopoulos, 399 F.3d at 80-81. On bal-
ance, therefore, we conclude that the limited remand approach
is preferable. As described by Judge Posner, it is
the middle way between placing on the defendant the
impossible burden of proving that the sentencing
4
We do not imply that all forfeited sentencing errors should be
addressed by limited remand. Booker presents a unique situation. After
Booker, we are left with hundreds of unconstitutional sentences pending
on direct review, and we should not consign the vast majority of these
defendants to serve illegal terms when we have an accurate way to resolve
the plain error question. We need not speculate about the effect of the
error; we can simply ask the sentencing judge.
6364 UNITED STATES v. AMELINE
judge would have imposed a different sentence had
the judge not thought the guidelines were mandatory
and requiring that all defendants whose cases were
pending when Booker was decided are entitled to be
resentenced, even when it is clear that the judge
would impose the same sentence and the court of
appeals would affirm.
Paladino, 401 F.3d at 484-85.
We come at last to the fourth prong of plain error review.
Here we examine whether a plain and demonstrably prejudi-
cial error “seriously affects the fairness, integrity, or public
reputation of [the] judicial proceedings.” Johnson v. United
States, 520 U.S. 461, 467 (1997) (citation and alteration omit-
ted). This inquiry hinges on the question presented to the dis-
trict court. If the district court would have imposed a different
sentence in an advisory regime, we “exercise [our] discretion
to notice [the] forfeited error,” id., because “it is a miscarriage
of justice to give a person an illegal sentence, just as it is to
convict an innocent person,” Paladino, 401 F.3d at 483. The
original sentence will be vacated, and the district court, with
the defendant present, will resentence in accordance with the
Reform Act as modified by Booker. See Crosby, 397 F.3d at
120.
Our colleagues in dissent criticize our adoption of the
approach articulated in Crosby, characterizing the limited
remand procedure as contradicting Booker, abdicating our
obligation to conduct appellate review, subsuming an inaccu-
rate prejudice inquiry, disregarding district court judges who
have left the bench, embracing illusory efficiencies, and
encouraging cursory review. See e.g., Wardlaw Concurring/
Dissenting Opinion, p. 6375; Gould Concurring/Dissenting
Opinion, pp. 6403, 6412, 6417. Despite our colleagues’
thoughtful presentation of their views, we remain convinced
that the limited remand procedure set forth in Crosby best
UNITED STATES v. AMELINE 6365
resolves this unique issue that has arisen in the wake of the
Supreme Court’s holding in Booker.
Unfortunately, we cannot look to Booker for guidance in
assessing plain error, because Booker did not address plain
error in the context of resolving the issues in that case. See
Antonakopoulos, 399 F.3d at 79 n.10 (noting that no plain
error issue was before the Court in Booker). Although it is
true that the Supreme Court did not approve a limited remand
procedure, neither did it prohibit one. Similarly, we cannot
conclude from the fact that Booker’s case was remanded for
resentencing that remand for resentencing is appropriate in all
cases. The Supreme Court expressly instructed otherwise. See
Booker, 125 S. Ct. at 769 (“Nor do we believe that every
appeal will lead to a new sentencing hearing.”). The fact
remains that different approaches have been taken by courts
post-Booker. We remain of the view that the Crosby approach
is consistent with Booker.
[10] Nor do we agree that the limited remand procedure
abdicates our obligation to conduct appellate review. To the
contrary, the procedure provides for more accurate appellate
review. Without the benefit of the district court’s views, we
would be left with review of a potentially misleading record.
District court judges often make remarks at sentencing for
purposes other than fact-finding. A district court judge may
choose to say some encouraging words for the benefit of the
defendant’s family; a district court judge may decide to lec-
ture the defendant with a warning. District court judges have
also been known to make stray comments about the Guide-
lines during sentencing, without necessarily intending for
them to be interpreted as meaning that a different sentence
would have been imposed under a discretionary sentencing
scheme. It would be a mistake for us to attribute fresh mean-
ing to comments made in an entirely different context. It
would also be a mistake to infer from a district court’s silence
that the district court would not have made a different deci-
sion under a different sentencing scheme. In sum, in this
6366 UNITED STATES v. AMELINE
unusual context, our ability to assess plain error based on the
cold record is significantly impaired. Although no system is
perfect, our appellate plain error review will be better
informed and more accurate by obtaining the district court’s
findings. Because a vacation of the sentence would be
required if the district court would have imposed a different
sentence under a discretionary sentencing system, it is also
appropriate for us to direct the district court to proceed with
resentencing if the Booker error prejudiced the defendant.
Identifying legal error and providing direction to the district
court on how to cure it is a quintessentially appellate function.
Adopting a limited remand procedure to effectuate resolution
of legal error does not abdicate our appellate responsibility in
the least. Indeed, it is entirely consistent with our usual proce-
dures in such circumstances. See, e.g., Gunning, 401 F.3d at
1148 (describing the prior holding in which the panel
remanded to ask the district court “to make findings on the
record if it had already considered the minor role adjustment,
and to resentence if necessary.”)
Further, despite our dissenting colleague’s interpretation of
the majority opinion as encompassing “every pre-Booker
defendant asserting plain error,” the 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. See Williams, 399 F.3d at 458-59 (observing
that the limited remand procedure is appropriate where the
record leaves uncertainty regarding what sentence would have
been imposed absent error).5
5
In challenging the Second Circuit’s reliance on 18 U.S.C. § 3742 as
authority for ordering a limited remand, our colleague cites to dissenting
opinions in Booker. Those dissents, of course, are not precedential. See
Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th Cir. 1996)
(noting that a dissenting Supreme Court opinion is not binding precedent
and “does not tell us how a majority of the Court would decide.”). The dis-
sent also relies on the ipse dixit criticism in Rodriguez. However, we are
UNITED STATES v. AMELINE 6367
Only after determining that the record did not sufficiently
inform the reviewing court’s analysis, and only after conclud-
ing that the first two prongs of the plain-error test were met
did the court in Crosby remand the matter to the district court.
See Williams, 399 F.3d at 460. Rather than being a derelic-
tion, the remand was designed to avoid “leaving in place an
error-infected sentence” due to the lack of an adequate record.6
See id. at 461.
Our dissenting colleague also takes us to task for “asking
the wrong question of the district court,” and for undertaking
“to predict the likely outcome of a remand.” However, the
limited remand does not seek a response to the question of
what the district court would do on remand. Instead, the lim-
ited remand seeks a response to the question of whether the
district court would have imposed a materially different sen-
tence at the time of sentencing had it known that the Guide-
lines were advisory rather than mandatory. See Paladino, 401
F.3d at 485. This inquiry mirrors the holdings of Dominguez
Benitez, 124 S. Ct. at 2340, and Kotteakos v. United States,
328 U.S. 750, 764 (1946) (describing the appropriate inquiry
as the effect on the jury’s decision, i.e., the outcome).7
persuaded that the Second Circuit has the better of this argument. See
Crosby, 397 F.3d at 117 (noting that § 3742(f) provides that an appellate
court may remand “with such instructions as the court considers appropri-
ate.”). Finally, the language in § 3742 conditioning the power to remand
upon a determination that “the sentence was imposed in violation of law”
does not undermine the Second Circuit’s approach, because any sentence
imposed under the mandatory guidelines system with extra-verdict find-
ings was imposed in violation of law. See Booker, 125 S. Ct. at 748
(describing such a sentence as violating the Sixth Amendment.).
6
We acknowledge the existence of cases instructing reviewing courts to
review the “entire record.” See e.g., Dominguez Benitez, 124 S. Ct. at
2340. We have no quarrel with that directive in principle. However, that
principle is of no assistance when review of the “entire record” neverthe-
less requires resort to rank speculation to complete the plain error analysis.
7
We note in passing that refraining from adopting the limited remand
approach merely because the parties advocated against it is more of an
abdication than remanding a matter to the district court to inform the plain
error analysis.
6368 UNITED STATES v. AMELINE
As noted, we cannot and should not attempt to anticipate
and address every issue that may arise in the course of resolv-
ing pre-Booker sentencing appeals. Many of the “illusory effi-
ciency” scenarios described by our dissenting colleagues are
of that nature. Although it is true that a limited remand could
result in a subsequent appeal, so could a resentencing. Never-
theless, the relative prospect of future appeals should not deter
us from adopting a process that we view as facilitating reli-
able appellate review. And although efficiency is an important
consideration in the administration of justice, see Government
Emp. Ins. Co. v. Dizol, 133 F.3d 1220, 1226-27 (9th Cir.
1998) (recognizing the importance of judicial economy), it is
not the most important consideration in the context of this
case. More important is the opportunity under the Crosby
approach to engage in a more accurately informed plain error
review. See Coles, 403 F.3d at 770. Indeed, if efficiency were
paramount, the procedure of choice would be one that
declined to recognize most forfeited Booker errors. See e.g.,
Rodriguez, 398 F.3d at 1304 (explaining that “where the
record does not provide ‘any indication’ that there would have
been a different sentence,” the defendant loses.).
Finally, we do not share the concern regarding cursory
review on remand that is articulated in the “dissent from the
Seventh Circuit’s decision to adopt the same type of limited
remand rule.” We are confident that our conscientious and
able colleagues on the district courts throughout this Circuit
will continue to give each case the individualized attention it
deserves.
IV.
The Process to be Followed
[11] In hopes of making clear the process that we conclude
should be followed, we outline it here. We begin with our
own review. Booker explicitly stated that its holding applies
to all cases pending on direct appeal. Booker, 125 S.Ct. at
UNITED STATES v. AMELINE 6369
769. Even where the briefs filed by the parties do not raise a
Booker objection, we conclude that the issue may be raised
and should be considered.
When faced with an unpreserved Booker/Fanfan error, the
reviewing panel must first determine if an eligible party wants
to pursue the subject. Although either the defendant or the
government may raise the nonconstitutional error that a sen-
tence was erroneously imposed under guidelines believed to
be mandatory, Booker/Fanfan 125 S. Ct. at 769, the Sixth
Amendment objection — that the defendant’s sentence was
enhanced by judge-found facts under a mandatory Guidelines
system — is available to the defendant alone.8 However,
because we do not assume that every defendant will want to
pursue resentencing, the limited remand procedure must
include an opportunity for defendants with pending appeals to
opt out of resentencing by promptly notifying the district
court judge. See Crosby, 397 F.3d at 118.
If an eligible party seeks resentencing under Booker/
Fanfan, we will then engage in the plain error analysis
described in this opinion. If that analysis leads the panel to the
same dead end that we reach here, where it is not possible to
reliably determine from the record whether the sentence
imposed would have been materially different had the district
court known that the Guidelines were advisory, we will
remand to the sentencing court to answer that question.
8
In a case where the district court did not treat the sentencing guidelines
as advisory but the defendant’s sentence was not enhanced by extra-
verdict findings —such as where there were no sentencing enhancements
or where the defendant acknowledged the facts necessary to justify the
enhancement—a different, nonconstitutional error occurs. See United
States v. Castillo, Nos. 02-3584 & 02-4344, 2005 WL 1023029 (7th Cir.
May 3, 2005) (citing cases); Lawrence, 2005 WL 906582, at *12. Neither
Ameline nor the government has raised the issue of nonconstitutional error
in this appeal.
6370 UNITED STATES v. AMELINE
In answering the question we pose, the district court need
not determine or express what the sentence would have been
in an advisory system. It is enough that the sentence would
have been materially different. We agree with the Second Cir-
cuit that the “views of counsel, at least in writing,” should be
obtained. See Crosby, 397 F.3d at 120.
If the district court judge determines that the sentence
imposed would not have differed materially had he been
aware that the Guidelines were advisory, the district court
judge should place on the record a decision not to resentence,
with an appropriate explanation. A party wishing to appeal the
order may file a notice of appeal as provided in Fed. R. App.
P. 4(b).9
If the district court determines that the sentence imposed
would have differed materially if the district court judge were
applying the Guidelines as advisory rather than mandatory,
the error was prejudicial, and the failure to notice the error
would seriously affect the integrity, fairness and public repu-
tation of the proceedings.10 In such a case, the original sen-
tence will be vacated and the district court will resentence
with the defendant present. In resentencing the defendant, the
district court is permitted to take a fresh look at the relevant
facts and the Guidelines consistent with Booker, the Sentenc-
ing Reform Act of 1984, Rule 32 of the Federal Rules of
Criminal Procedure, and this opinion. See Gunning, 401 F.3d
at 1148; see also United States v. Matthews, 374 F.3d 872,
880 (9th Cir. 2004). In either case, the defendant and the gov-
9
A new appeal taken after the filing of the district court’s order will be
subject to the usual procedure pertaining to comeback cases, as provided
in General Order 3.7, General Orders of the Ninth Circuit Court of
Appeals (2005).
10
The parties and the district court may agree in a given case to proceed
directly to a resentencing proceeding, without the need for submissions by
counsel or separate consideration of the question of whether the previous
sentence would have been different had the sentencing court known that
the Guidelines were not mandatory.
UNITED STATES v. AMELINE 6371
ernment have the right to appeal to this court the district
court’s decision, including a challenge to the sentence based
on the reasonableness standard established in Booker. Booker,
125 S. Ct. at 765-66.
V.
Erroneous Allocation of the Burden of Proof
[12] The government has conceded that the district court
erred in placing the burden of proof on the defendant to dis-
prove the factual basis for the base level offense and sentence
enhancements sought by the government. The government
“bear[s] the burden of proof for any fact that the sentencing
court would find necessary to determine the base offense
level.” United States v. Howard, 894 F.2d 1085, 1090 (9th
Cir. 1990). As we explained in Howard, “[s]ince the govern-
ment is initially invoking the court’s power to incarcerate a
person, it should bear the burden of proving the facts neces-
sary to establish the base offense level.” Id. Here, by placing
the burden on Ameline to disprove the factual statements
made in the PSR, the district court improperly shifted the bur-
den of proof to Ameline and relieved the government of its
burden of proof to establish the base offense level.
Of course, the district court may rely on undisputed state-
ments in the PSR at sentencing. United States v. Charles-
worth, 217 F.3d 1155, 1160 (9th Cir. 2000). However, when
a defendant raises objections to the PSR, the district court is
obligated to resolve the factual dispute, see Fed. R. Crim. P.
32(i)(3)(B), and the government bears the burden of proof to
establish the factual predicate for the court’s base offense
level determination. Howard, 894 F.2d at 1090. The court
may not simply rely on the factual statements in the PSR.
[13] The government also bears the burden of proof when
it seeks sentence enhancements. Id. at 1089. As we explained
in Howard, the party seeking an adjustment bears the burden
6372 UNITED STATES v. AMELINE
of proof. Id. Thus, when the defendant requests a downward
adjustment, the defendant bears the burden of proof; when the
government seeks an upward adjustment, it bears the burden
of proof. Id. Here, the district court also erred by placing the
burden of proof on the defendant to disprove the upward
adjustment recommended in the PSR and sought by the gov-
ernment.
The fact that the Sentencing Guidelines have become dis-
cretionary following Booker does not alter this analysis. The
district court’s factual findings will determine the base
offense level, which remains the starting point for determin-
ing the applicable guideline range for an offense under 21
U.S.C. § 841(a)(1). See U.S.S.G. § 2D1.1(c). When a defen-
dant contests the factual basis of a PSR, the district court
remains obligated to resolve the dispute before exercising its
sentencing discretion under Booker. In resolving the factual
dispute, the district court must continue to apply the appropri-
ate burdens of proof, consistent with Howard.
VI.
Conclusion
We adopt the limited remand procedure articulated by the
Second Circuit in Crosby to assess the existence of plain error
in pre-Booker sentencing appeals.
[14] In this case, remand is also required to address the dis-
trict court’s error in misallocating the burden of proof at sen-
tencing, in light of the presentation of evidence by Ameline
challenging the drug amounts recommended in the PSR. To
correct the Howard error, the district court must hold a new
sentencing hearing in accordance with Federal Rule of Crimi-
nal Procedure 32(i). Accordingly, we vacate the sentence and
remand for further proceedings consistent with this opinion.
SENTENCE VACATED and REMANDED.
UNITED STATES v. AMELINE 6373
WARDLAW, Circuit Judge, with whom GOULD, Circuit
Judge, joins, and with whom O’SCANNLAIN and BEA, Cir-
cuit Judges, join with respect to Part I, concurring in part and
dissenting in part:
The district court erred by treating the factual statements in
the Presentence Report as presumptively accurate and placing
the burden on Ameline to disprove them. See United States v.
Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). I therefore
concur in the majority’s decision to vacate Ameline’s sen-
tence and to remand his case for a new sentencing hearing
pursuant to Federal Rule of Criminal Procedure 32. I respect-
fully dissent, however, from the majority opinion because it
improperly delegates to the district courts our discretionary
appellate function to conduct plain error review of unpre-
served claims of Booker error. The resulting wholesale
remand of hundreds, possibly thousands, of sentencing
appeals elevates our administrative concerns over the law as
pronounced by the Supreme Court in United States v. Booker,
125 S. Ct. 738 (2005), and over the interests of individual jus-
tice.
I.
Flaws in the Majority’s “Limited Remand” Approach
The majority accurately characterizes the Booker error. A
constitutional infirmity arises only where a defendant’s sen-
tence is enhanced under a mandatory Guidelines system as a
result of factual findings made by the sentencing judge
beyond the facts admitted to by the defendant or found by a
jury. The majority is also correct that, after Booker, such an
error is plain. But those are only the first two prongs of the
plain error test. We must also determine whether the plain
error affected the defendant’s “substantial rights.” United
States v. Cotton, 535 U.S. 625, 631 (2002). If this third prong
is met, we may then exercise our discretion to notice the for-
feited error, but only if the “error seriously affect[s] the fair-
6374 UNITED STATES v. AMELINE
ness, integrity, or public reputation of judicial proceedings.”
Id. (quotations omitted).
Neither party to this litigation urged us to adopt the Second
Circuit’s Crosby approach, which relegates to the district
courts the determination of the third and fourth prongs of
plain error review. See United States v. Crosby, 397 F.3d 103
(2d Cir. 2005). Indeed, both parties advocated against our
adoption of Crosby. Yet, after examining the analyses of our
sister circuits, the majority selects Crosby for the reason that
it is a “practical,” “short,” “easy,” “quick,” and “sure” way to
dispose of unpreserved claims of Booker error. I agree that the
majority’s approach is “short,” “quick,” and “easy,” at least
for our court. It relieves our docket of “literally thousands of
cases” (in the government’s words). It relieves us of our obli-
gation to review each of those cases individually. It perma-
nently disposes of at least some portion of those cases, such
as where a defendant will have already served his unconstitu-
tional sentence by the time the district courts, with their own
heavy dockets, absorb the avalanche of simultaneous remands
and are able to make the time to decide whether or not to
resentence. We will have removed several appeals from our
own crowded docket by requiring the district courts to further
crowd theirs, as they do our job. Although the burden-shifting
approach the majority arrives upon may be “short,” “easy,”
and “quick,” it is neither correct nor just.
The majority’s delegation of the third and fourth prongs of
plain error review to the district courts has several flaws: (1)
it contradicts what the Supreme Court said and did in Booker;
(2) it abdicates our obligation as a reviewing court to conduct
plain error review; (3) the question it poses for the district
courts is not an accurate inquiry under the prejudice prong of
plain error review; (4) it fails to make provision for the num-
ber of district judges who have left the bench or who have
become otherwise incapacitated since imposing the unconsti-
tutional sentences under review, and who, therefore, are inca-
UNITED STATES v. AMELINE 6375
pable of answering its question; and (5) any efficiencies that
it purportedly promises will prove illusory.
1. Booker
The majority’s approach is at odds with what the Supreme
Court said and did in Booker. There, the Court instructed “re-
viewing courts to apply ordinary prudential doctrines, deter-
mining, for example, whether the issue was raised below and
whether it fails the ‘plain-error’ test.” Booker, 125 S. Ct. at
769 (emphasis added). The Court directed appellate courts to
fulfill their review function, and did not even hint that dele-
gating that function to the district courts might be appropriate.
“The Supreme Court phrased its instructions to reviewing
courts in terms of what has long been accepted practice in the
federal courts and did not suggest that this accepted practice
must change in the wake of Booker.” United States v. Milan,
398 F.3d 445, 454 (6th Cir. 2005).1
The majority’s approach also conflicts with what the
Supreme Court did in Booker. The Court reviewed Booker’s
case and found that the district court “imposed a sentence
higher than the maximum authorized solely by the jury’s ver-
dict,” a Sixth Amendment violation. Booker, 125 S. Ct. at
769. The Court remanded the case for resentencing, ordering
that “[o]n remand, the District Court should impose a sen-
tence in accordance with today’s opinions, and, if the sen-
tence comes before the Court of Appeals for review, the Court
of Appeals should apply the standards set forth in this opin-
ion.” Id. The Court saw no need to ask the district court to
determine in the first instance whether resentencing was war-
1
Since Booker, the Supreme Court has vacated every one of our judg-
ments that touches upon a Booker issue and remanded them for “further
consideration in light of [Booker].” See, e.g., Alizondo v. United States,
125 S. Ct. 1000 (2005). It has not remanded them with instructions to
remand to the district courts for participation in the appellate review func-
tion.
6376 UNITED STATES v. AMELINE
ranted. It thus made clear that appellate courts should review
an unpreserved claim of Booker error for whether it is plain
error, and remand for resentencing in appropriate cases. Nor
did the Court incorporate the remedial portion of its decision
into the question of whether there was error—i.e., it did not
ask whether the sentence would have been different under
advisory Guidelines, reviewing the error in Booker’s case
without regard to its contemporaneous announcement that the
Guidelines were advisory.
The significance of the Supreme Court’s decision to
remand in Booker is not undermined by the government’s
failure to argue plain error principles in that case. According
to the majority, because the government had waived the argu-
ment that Booker’s appeal was governed by the plain error
standard of review, Booker provides no guidance for assess-
ing unpreserved claims of Booker error. The majority’s
refusal to turn to Booker for guidance, however, disregards
our law that to vacate and remand a sentence requires some
determination of prejudice whether or not the issue is pre-
served; plain error principles change only the identity of the
party who bears the burden of persuasion. See United States
v. Olano, 507 U.S. 725, 734 (1993) (substantial rights prong
of plain error analysis mirrors harmless error analysis but
shifts the burden of persuasion with respect to prejudice to the
defendant). Inherent in the Court’s decision to remand
Booker’s case for resentencing is necessarily a decision that
the error in his case was prejudicial, i.e., was not harmless and
affected Booker’s substantial rights. See Fed. R. Crim. P.
52(a) (“Any error . . . that does not affect substantial rights
must be disregarded.”). If the Court had not found the Booker
error to be prejudicial, it could not have found that error to
properly form the basis for vacating and remanding for resen-
tencing.
Nor did the Court find any impediment to reversing Fan-
fan’s sentence and allowing “the Government (and Fanfan
should he so choose) [to] seek resentencing under the system
UNITED STATES v. AMELINE 6377
set forth in [Booker].” Booker, 125 S. Ct. at 769. In Fanfan’s
case, the district court imposed a sentence lower than the sen-
tence authorized by the jury’s verdict and thus lower than
what the then-mandatory Guidelines dictated. The Court
understood that resentencing might be an undesirable option
for Fanfan, as he risked the imposition of a higher sentence.
Nevertheless, it readily permitted a remand for a full resen-
tencing, even in the absence of a Sixth Amendment violation.
Id.
2. Abdication of Our Appellate Review Function
Although the majority labels its approach a “limited
remand,” the approach is in fact an abdication of our appellate
review function. “We have used the term ‘limited remand’ to
describe a remand to the district court for proceedings prior
to this court’s consideration of the merits of an appeal.”
United States v. Washington, 172 F.3d 1116, 1118 (9th Cir.
1999) (emphasis added). Under the majority’s approach, the
district court conducts the third and fourth prongs of plain
error review, resentences if it deems necessary, and reenters
judgment. If a notice of appeal is filed, that judgment may
become the subject of a new appeal, but our consideration of
the merits of the defendant’s original appeal is eliminated.
Contrary to the majority’s asserted reason for the remand—
“to permit the sentencing judge to inform the reviewing
court’s analysis” of the third prong of plain error review, ante
at 6360—the sentencing judge is under no obligation to actu-
ally inform us as to whether he “would have imposed a mate-
rially different sentence had he been aware of the now-
advisory nature of the sentencing guidelines.” Ante at 6360.
Nor do we retain jurisdiction of the case. As a result, we will
never make an informed appellate decision as to whether the
Booker error affected the defendant’s original sentencing pro-
ceeding, and the fourth, discretionary, decision with which we
are charged under plain error review simply vanishes. There-
fore, despite its best effort to make it appear otherwise, the
6378 UNITED STATES v. AMELINE
majority is simply relinquishing to the district courts the last
two prongs of plain error review.
As part of its efforts to justify its abdication of our appel-
late review function, the majority discusses at length several
ways in which district judges create “potentially misleading
records.” Whether or not district judges create “potentially
misleading records,” it is a fact of life that appellate courts
must review cold records; that’s their job and the argument is
no justification for abandoning that important work. This
argument also conflicts with the majority’s description of
“The Process to be Followed,” which requires that a three-
judge panel review the entire “potentially misleading” record
before ordering a “limited remand.” Only “[i]f that analysis
leads to the same dead end that [the majority] reach[es] here,
where it is not possible to reliably determine from the record
whether the sentence imposed would have been materially
different” under the now-advisory Guidelines, ante at 6369,
may the panel issue a “limited remand.” The majority never
describes at what point a panel may reach a “dead end,” or
when it will be impossible for a panel “to reliably determine”
“whether the sentence imposed would have been materially
different” under the now-advisory Guidelines. Ante at 6369.
Unbelievably, the majority, acting in haste to dispose of
unpreserved claims of Booker error, has left wide open the
nature and extent of review in which any subsequent panel
should engage before ordering a “limited remand.”2
2
Under the majority’s analysis, panels of our court remain free to review
the record, apply the proper prejudice inquiry, find that prejudice exists,
and remand for resentencing. The majority emphasizes that “the 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.” Ante
at 6366. The majority continues, stating that “[o]nly after determining that
the record did not sufficiently inform the reviewing court’s analysis,” is
the “limited remand” triggered. Ante at 6367. This appears to leave open
the process utilized by the Eleventh Circuit in United States v. Rodriguez,
398 F.3d 1291, 1301 (11th Cir. 2005), where if the district judge openly
indicated that he would not have imposed the sentence he did but for the
mandatory Guidelines, then prejudice is found.
UNITED STATES v. AMELINE 6379
The majority also ignores our precedents that demonstrate
that the limited remand device is used not to assign our tradi-
tional review function to the district court, but to elicit the dis-
trict court’s decision on a question it earlier missed, or to
permit the district court to engage in its own traditional fact-
finding function. In United States v. Gunning, 339 F.3d 948
(9th Cir. 2003) (per curiam), cited by the majority, Gunning
argued that he was entitled to a two-level minor role adjust-
ment under U.S.S.G. § 3B1.2(b). The district court made no
findings regarding the adjustment. “Because it is for the dis-
trict court to rule on sentencing issues in the first instance,”
we remanded for the court to make additional findings and to
resentence if necessary. Id. at 949. We did not remand to the
district court to allow it to determine whether it had commit-
ted a legal error in sentencing in the first place. Therefore, the
majority’s reliance on Gunning in support of its novel
approach to plain error review is inapposite.
Similarly, in United States v. Hovsepian, 359 F.3d 1144
(9th Cir. 2004), we held that because the district court did not
consider appellees’ convictions or their possible affiliations
with terrorist groups, the court failed to undertake a complete
analysis of their naturalization applications. Id. at 1168. We
remanded the case to the district court for additional fact-
finding—a task well within the traditional province of district
courts, see Fed. R. Civ. P. 52(a)—not for a determination of
whether the district court committed legal error. Id. at 1169.
To the contrary: We not only retained jurisdiction over the
appeal, we further ordered:
Within 120 days of the issuance of the mandate, or
such further time as this court may allow, the district
court shall forward its additional findings of fact and
conclusions of law to this court, with copies to the
parties, so that we may review the district court’s
assessment of all the relevant facts in reaching a
final disposition. Within 30 days after the district
court forwards its findings and conclusions, any
6380 UNITED STATES v. AMELINE
party may request this court’s further review of the
naturalization issue.
Id. (first emphasis added).
The majority cites no Supreme Court authority to support
its delegation of the last two prongs of plain error review to
the discretion of the district courts. Nor can it, because review
for error, plain or otherwise, is an exclusive function of appel-
late courts. Booker itself makes this clear, as do a host of
other Supreme Court decisions. See United States v. Domin-
guez Benitez, 124 S. Ct. 2333, 2340 (2004) (a defendant who
seeks reversal on the ground that the district court committed
plain error must satisfy the judgment of the “reviewing court”
that the probability of a different result is sufficient to under-
mine confidence in the outcome of the proceeding); United
States v. Vonn, 535 U.S. 55, 59 (2002) (a “reviewing court”
must consider the effect of any error on substantial rights);
Kotteakos v. United States, 328 U.S. 750, 763-64 (1946) (in
deciding the prejudice prong of plain error, “appellate courts”
must consider what effect the error had or reasonably may
have had upon the outcome of the proceedings). As the Elev-
enth Circuit has recognized, “[t]he determination of plain
error is the duty of courts of appeal, not district courts.”
Rodriguez, 398 F.3d at 1305; see also United States v. Mares,
402 F.3d 511, 522 (5th Cir. 2005) (“[W]e find no support for
[the Crosby approach] in the Supreme Court plain error cases.
Those cases place the obligation on the appellate courts—
rather than the district courts—to determine the third prong of
the plain error test.”).
The majority’s misreading of 18 U.S.C. § 3742(f) leads it
to adopt the Second Circuit’s erroneous rationale that “the
power to remand for resentencing [under § 3742(f)] necessar-
ily encompasses the lesser power to order a limited remand.”
Section 3742 governs appellate review of criminal sentences.
As Justice Scalia noted in Booker: “Even the most casual
reading of this section discloses that its purpose—its only
UNITED STATES v. AMELINE 6381
purpose—is to enable courts of appeals to enforce conformity
with the Guidelines.” Booker, 125 S. Ct. at 791 (Scalia, J., dis-
senting).3 Thus, § 3742 imposes an obligation on appellate
courts to review district courts’ sentencing decisions. The
majority misuses § 3742 by drawing an inference from that
section, which was designed to curtail district courts’ discre-
tion,4 to support relinquishing to district courts our appellate
review function.
The plain language of § 3742 demonstrates that it cannot
carry the weight the majority assigns to it. Section 3742(f)
provides, in pertinent part:
3
The continued viability of § 3742(f) itself is subject to question. As
Justice Scalia wrote in Booker:
If the Guidelines are no longer binding, one would think that the
provision designed to ensure compliance with them would, in its
totality, be inoperative. The Court holds otherwise. Like a black-
robed Alexander cutting the Gordian knot, it simply severs the
purpose of the review provisions from their text, holding that
only subsection (e), which sets forth the determinations that the
court of appeals must make, is inoperative, whereas all the rest
of § 3742 subsists—including, mirabile dictu, subsection (f),
entitled “Decision and disposition,” which tracks the determina-
tions required by the severed subsection (e) and specifies what
disposition each of those determinations is to produce. This is
rather like deleting the ingredients portion of a recipe and telling
the cook to proceed with the preparation portion.
Id.
4
To further constrain the exercise of discretion by district courts, appel-
late review of district courts’ sentencing decisions was broadened by the
Prosecutorial Remedies and Tools Against the Exploitation of Children
Today Act of 2003 (“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650
(2003). See Booker, 125 S. Ct. at 786-87 (Stevens, J., dissenting)
(“Congress has rejected each and every attempt to . . . vest judges with
more sentencing options. . . . Most recently, Congress’ passage of the
[PROTECT Act] reinforced the mandatory nature of the Guidelines by
expanding de novo review of sentences to include all departures from the
Guidelines . . . .”).
6382 UNITED STATES v. AMELINE
If the court of appeals determines that—
(1) the sentence was imposed in violation of law or
imposed as a result of an incorrect application of the
sentencing guidelines, the court shall remand the
case for further sentencing proceedings with such
instructions as the court considers appropriate.
18 U.S.C. § 3742(f)(1). This section mandates that “the court
of appeals” make the determination that the sentence “was
imposed in violation of the law.” Id. The majority instead
invites the district courts—the very courts whose decisions
are under review—to participate in the predicate finding of
legal error. Sending the third and fourth prongs of the plain
error determination to the district court abrogates the very
obligation of appellate review that § 3742(f) mandates. Order-
ing a “limited remand” is not a lesser power inherent in
§ 3742(f); it is an entirely different remedy that conflicts with
congressional directives as to the review and disposition of
sentencing appeals.
The Eleventh Circuit has also found illogic in the Second
Circuit’s—and now our own—reasoning that, because
§ 3742(f) authorizes remands for resentencing to remedy a
sentence imposed in error, appellate courts necessarily have
the “lesser” power to remand for a determination of whether
the original sentence was contrary to law:
That conclusion does not follow at all. In cases of
non-preserved error appellate courts lack the author-
ity to remand for resentencing where the require-
ments of the plain error rule have not been met. The
remands being ordered are not, as Crosby suggests,
for the purpose of determining “whether to resen-
tence,” but for the purpose of determining whether
the third prong of the plain error test has been met
so that the unpreserved error may be noticed and the
appealed sentence vacated. Neither § 3742(f) nor any
UNITED STATES v. AMELINE 6383
other part of the Sentencing Reform Act purports to
give appellate courts the authority to delegate the
decision of whether there has been plain error to the
very court whose judgment is being reviewed.
Rodriguez, 398 F.3d at 1306 (emphasis added).
By characterizing its approach as a “sure” and “certain”
way to determine prejudice, the majority demonstrates its
misapprehension of the correct standard for determining
whether Booker error affected a defendant’s substantial rights.
As the Supreme Court most recently stated in Dominguez
Benitez, to meet the third prong of the plain error test, “[a]
defendant must . . . satisfy the judgment of the reviewing
court, informed by the entire record, that the probability of a
different result is sufficient to undermine confidence in the
outcome of the proceeding.” Dominguez Benitez, 124 S. Ct. at
2340 (quotations and citations omitted). Applying this preju-
dice test to Booker error, the correct inquiry is whether a rea-
sonable probability exists that, but for the Booker error, the
outcome of the defendant’s sentencing proceeding would
have been different so as to undermine our confidence in the
sentence. Kotteakos, 328 U.S. at 764 (a reviewing court must
determine “what effect the error had or reasonably may be
taken to have had upon the outcome of the proceedings”
(emphasis added)).
The majority’s failure to grasp that the inquiry is objective,
rather than subjective, leads to its notion that it is appropriate
“to ask the sentencing judge.” The majority clings to its erro-
neous view of the prejudice inquiry to defend the “limited
remand” procedure as merely a last resort, after the appellate
panel cannot find the answer to whether the district judge
“would have imposed a materially different sentence” had the
Guidelines been advisory. But that is an irrelevant question
under the prejudice inquiry and invites the district judge him-
self to speculate about what he would have done in a different
world. It is doubtful that most judges will even recall the cir-
6384 UNITED STATES v. AMELINE
cumstances of every sentencing hearing over which they have
presided since Apprendi v. New Jersey, 530 U.S. 466 (2000).
As appellate judges, we can and should objectively determine,
based on a review of the record, whether it is reasonably prob-
able that the defendant’s sentence would have been different
but for the Booker error. We do not need, nor is it appropriate
to obtain, the subjective views of the sentencing judge.
Because the inquiry is not subjective, the views of the sen-
tencing judge are irrelevant. See United States v. Hughes, 401
F.3d 540, 551 (4th Cir. 2005) (“[T]he proper focus is on what
actually happened as a result of the error, not what might hap-
pen in a subsequent proceeding on remand.”).
3. Sentencing Post-Booker
Even if the majority could cite any legal precedent support-
ing its approach, the abbreviated sentencing determination it
requires of the district court is not a substitute for the sentenc-
ing proceeding required after Booker. In the post-Booker
world, district courts must consider the factors provided in 18
U.S.C. § 3553(a) in fashioning the appropriate sentence for
the individual defendant. As stated by Justice Breyer in his
remedial opinion for the Court:
Without the “mandatory” provision, the [Sentencing
Reform Act] nonetheless requires judges to take
account of the Guidelines together with other sen-
tencing goals. See 18 U.S.C.A. § 3553(a) (Supp.
2004). The Act nonetheless requires judges to con-
sider the Guidelines “sentencing range established
. . . for the applicable category of offense committed
by the applicable category of defendant,”
§ 3553(a)(4), the pertinent Sentencing Commission
policy statements, the need to avoid unwarranted
sentencing disparities, and the need to provide resti-
tution to victims, §§ 3553(a)(1), (3), (5)-(7) (main
ed. and Supp. 2004). And the Act nonetheless
requires judges to impose sentences that reflect the
UNITED STATES v. AMELINE 6385
seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deter-
rence, protect the public, and effectively provide the
defendant with the needed educational or vocational
training and medical care. § 3553(a)(2) (main ed.
and Supp. 2004).
Booker, 125 S. Ct. at 764-65.
District courts now also have the discretion to weigh a mul-
titude of mitigating and aggravating factors that existed at the
time of mandatory Guidelines sentencing, but were deemed
“not ordinarily relevant,” such as age, education and voca-
tional skills, mental and emotional conditions, employment
record, and family ties and responsibilities. See U.S.S.G.
§ 5H1.1-6; see also Koon v. United States, 518 U.S. 81, 95
(1996) (“Discouraged factors . . . are those not ordinarily rele-
vant to the determination of whether a sentence should be out-
side the applicable guideline range. Examples include the
defendant’s family ties and responsibilities, his or her educa-
tional and vocational skills, and his or her military, civic,
charitable, or public service record.” (quotations and citations
omitted)). Indeed, district courts may even consider factors
that were precluded from consideration altogether prior to
Booker, such as drug and alcohol dependence, lack of guid-
ance as a youth, and personal financial difficulties and eco-
nomic pressures. See U.S.S.G. §§ 5H1.4, 5H1.12, and
5K2.12; see also Koon, 518 U.S. at 95 (“The Commission
lists certain factors that never can be bases for departure,
[such as] lack of guidance as a youth; drug or alcohol depen-
dence; and economic hardship . . . .” (citations omitted)).
The majority leaves open the possibility that these factors
—now essential to sentencing consistent with 18 U.S.C.
§ 3553(a) and its directive that the sentence be “sufficient but
not greater than necessary to comply with the purposes of
sentencing”—might come to light in a sentencing hearing, but
it does not require that a district court hold a hearing before
6386 UNITED STATES v. AMELINE
deciding against resentencing the defendant. Indeed, “[i]n all
too many instances, the process scripted by the [majority] will
serve as an invitation for [a] district court to give only a
superficial look at [an] earlier unconstitutionally[ ] imposed
sentence.” United States v. Paladino, 401 F.3d 471, 486 (7th
Cir. 2005) (Ripple, J., dissenting from denial of rehearing en
banc). Because under the majority’s approach the appellate
court will not perform plain error review, such a “quick look”
sentencing decision would be subject only to the lesser “rea-
sonableness” standard of review.
Defendants should be accorded the benefit of the complete
discretion district courts now enjoy. They should have the
opportunity to be heard on § 3553 and its newly relevant fac-
tors. Briefs of counsel are not a substitute for testimony, evi-
dence, and argument. The majority fails to explain how,
without an evidentiary hearing and briefing tantamount to
resentencing by normal vacatur and remand procedures, a dis-
trict judge could ever accurately answer the question as to
whether he would have imposed a materially different sen-
tence had he known that the Guidelines were advisory.
For example, Ameline’s trial counsel made the strategic
decision to focus on drug quantity and gun possession at
Ameline’s sentencing hearing because only those factors
could have significantly decreased Ameline’s offense level
under the mandatory Guidelines. By contesting drug quantity
and gun possession, Ameline potentially could have reduced
his sentence by over 10 years because the drug quantity and
gun possession determinations fixed the range within which
Ameline was sentenced. By contrast, evidence as to Ame-
line’s “background, character and conduct,” see U.S.S.G.
§ 1B1.4, could have only affected the point within the Guide-
lines range at which Ameline would be sentenced. After
Booker, however, a defendant’s “background, character and
conduct” are the very factors that might convince a judge to
exercise his discretion to disregard the advisory Guidelines
range, but only if, upon plain error review, we notice the
UNITED STATES v. AMELINE 6387
error, vacate the defendant’s sentence, and remand for resen-
tencing. “In short, what the panel substitutes for the usual
judicial reaction to an unconstitutionally[ ] imposed sentence
is a process that simply is inadequate to the task.” Paladino,
401 F.3d at 486 (Ripple, J., dissenting from denial of rehear-
ing en banc).
UNITED STATES v. AMELINE 6389
Volume 2 of 2
6390 UNITED STATES v. AMELINE
4. Practical Problems
Chief among the practical problems presented by the
majority’s approach is that it fails to account for the fact that
several district judges have retired, become disabled, or
passed away since imposing the unconstitutional sentences
currently under review. The recent retirement of the Honor-
able Lourdes G. Baird from the United States District Court
for the Central District of California to become a private
mediator is but one of many examples. See The Third Branch,
Judicial Milestones, Vol. 37, Number 4 (April 2005), avail-
able at http://www.uscourts.gov (last visited May 1, 2004). A
glaring imperfection in the majority’s “quick” and “easy”
approach is: What happens when we cannot “ask the sentenc-
ing judge?” The answer is that the Chief Judge of the district
court will reassign the remanded case to a currently serving
judge who cannot possibly answer the question the majority
poses because he was not the original sentencing judge. The
new sentencing judge will face additional practical problems
in resolving how to handle the case. This will necessarily
result in inconsistent applications of sentencing law, which
will likely generate future due process and equal protection
claims.
5. Illusory Efficiencies
The obvious attractiveness of the Crosby approach inheres
in its purported efficiencies. As a reviewing court, however,
our obligations under the Constitution are not always mea-
sured against a metric of efficiency or administrative conve-
nience. See, e.g., Blakely v. Washington, 124 S. Ct. 2531,
2543 (2004) (“[O]ur decision cannot turn on whether or to
what degree trial by jury impairs the efficiency . . . of criminal
justice.”); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,
490 (1951) (“Reviewing courts must be influenced by a feel-
ing that they are not to abdicate the conventional judicial
function.”). As the Supreme Court cautioned in Booker itself,
“ ‘delays, and little inconveniences in the forms of justice, are
UNITED STATES v. AMELINE 6391
the price that all free nations must pay for their liberty in more
substantial matters.’ ” Booker, 125 S. Ct. at 756 (quoting 4
Commentaries on the Laws of England 343-44 (1769)). In
light of the important constitutional rights at issue, the mini-
mal burdens that accompany individualized review of
unpreserved claims of Booker error are worth bearing.
Moreover, any efficiency that the majority’s approach may
seemingly promise is likely to prove illusory. If a district
judge chooses on remand not to resentence a defendant, we
may be required to review the standing sentence for reason-
ableness. Review for “reasonableness” is not limited to con-
sideration of the length of the sentence. Instead, the Booker
Court instructed appellate courts, in determining reasonable-
ness, to consider not only the length of the sentence but also
the factors evaluated and the procedures employed by the dis-
trict court. See Booker, 125 S. Ct. at 765-66; see also United
States v. Webb, 403 F.3d 373, 382-83 (6th Cir. 2005) (after
Booker appellate courts should “consider not only the length
of the sentence but also the factors evaluated and the proce-
dures employed by the district court in reaching its sentencing
determination”). Ultimately, we may conclude that a sentence
is unreasonable when the sentencing judge fails to explicitly
consider the factors listed in 18 U.S.C. § 3553(a), or neglects
to consult the applicable Guidelines range, and instead selects
what he deems an appropriate sentence without such required
consideration. In cases where a district judge elects not to
hold a hearing before deciding not to resentence,5 however, it
5
Decisions in the aftermath of the Second Circuit’s Crosby decision
prove that district courts will elect not to hold hearings before deciding not
to resentence. In one case, for example, a district judge for the Southern
District of New York denied a defendant’s request for a hearing, stating:
Crosby provides specific guidance to the District Courts of this
Circuit concerning cases remanded for possible re-sentencing. In
deciding whether a defendant should be re-sentenced, the District
Court should obtain the views of counsel, at least in writing, but
need not require the presence of the Defendant. Moreover, the
6392 UNITED STATES v. AMELINE
will be impossible for us to conduct a reasonableness review,
for the judge’s “appropriate explanation” for his decision not
to resentence cannot replace the insight into the factors evalu-
ated and the procedures employed by the judge that a tran-
script of a sentencing hearing would provide. This is
especially true in light of the majority’s failure to discuss
what would be an “appropriate explanation.” See Paladino,
401 F.3d at 488 (Kanne, J., dissenting from denial of rehear-
ing en banc) (“The record in the case in which there was no
resentencing (or hearing on the issue) will be impossible for
us to review for reasonableness, if reasonableness is to be
determined with regard to all of . . . ‘the numerous factors that
guide sentencing.’ ” (quoting Booker, 125 S. Ct. at 765-66)).
In addition to hindering our ability to review reimposed
sentences for “reasonableness,” the majority opens our docket
to countless arguments that would be precluded if we had per-
formed an individualized analysis. If we were to determine
under an individualized analysis that a particular defendant
did not meet his burden under the plain error standard, the
case would not be remanded to the district court and there
would be no second appeal. If we were to determine other-
wise, the defendant’s sentence would be vacated and his case
remanded for a full resentencing. However, because the
defendant would be entitled to all the procedures that accom-
pany a full resentencing, such as the opportunity to “present
all available accurate information bearing on mitigation of
punishment,” see United States v. Mack, 200 F.3d 653, 658
(9th Cir. 2000), the only issue on appeal likely would be the
question of whether to re-sentence may be resolved with or with-
out a hearing. Accordingly, defense counsel’s current request for
a conference is DENIED. The parties are directed to file any writ-
ten submissions concerning the possible re-sentencing of defen-
dant by May 15, 2005.
United States v. Jasper, 2005 WL 774519 (S.D.N.Y. April 6, 2005) (cita-
tions and quotations omitted).
UNITED STATES v. AMELINE 6393
“reasonableness” of the defendant’s new sentence. By con-
trast, under the majority’s approach, if a district court elects
not to hold a hearing before deciding to reimpose the pre-
Booker sentence, the defendant could raise a host of claims in
addition to the reasonableness of his sentence, such as the dis-
trict court’s failure to consider the factors set forth in 18
U.S.C. § 3553(a), and its violation of his right to allocution.
Therefore, while at first blush it may be enticing to an over-
worked and overscrutinized bench to rid ourselves of hun-
dreds, perhaps thousands, of appeals, we may create much
more work for ourselves down the road than if we had simply
done it right in the first place. The Eleventh Circuit accurately
describes Crosby as “requiring resentencing in order to deter-
mine whether resentencing is required.”6 Rodriguez, 398 F.3d
at 1305. It correctly observes that the Crosby procedure “un-
dermines the Supreme Court’s teaching that one of the princi-
pal purposes of the plain error rule is to avoid needless
reversals and remands.” Id. By adopting Crosby, the majority
creates “the real possibility of another appeal and another
remand on top of that.” Id.
One of the reasons for plain error review is to reduce the
burden on the judicial system. See Johnson v. United States,
520 U.S. 461, 468 (1997). The majority’s approach will nec-
essarily increase the workload of courts, first, at the district
court level, and then, inevitably, at the appellate level. The
better approach is to review these appeals as the Supreme
Court instructed and as our appellate duty requires.
6
The Second Circuit has responded to this criticism by stating that
“[t]he remand is for a determination of whether the original sentence
would have been materially different, and only in that event does the
remand lead to resentencing.” United States v. Williams, 399 F.3d 450,
461 (2d Cir. 2005) (emphasis in original). This response misses the point,
for the inquiry into whether the original sentence would have been “mate-
rially different” necessarily involves consideration of what sentence the
district court would apply if it were to resentence under the advisory
Guidelines.
6394 UNITED STATES v. AMELINE
II.
Individualized Review of Unpreserved Claims of
Booker Error
Where the majority and I part company is with respect to
the third and fourth prongs of the plain error test. The major-
ity improperly delegates to the district courts the tasks of
determining whether Booker error affected defendants’ sub-
stantial rights, and whether to notice the forfeited error. As the
First, Fifth, and Eleventh Circuits have held, however, we
must analyze these aspects of plain error at the appellate level
by reviewing the entire record of the sentencing proceedings.
See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st
Cir. 2005); Mares, 402 F.3d at 522; Rodriguez, 398 F.3d at
1304.
1. “Substantial Rights”
For an error to affect “substantial rights,” “the error must
have been prejudicial: It must have affected the outcome of
the district court proceedings.” Olano, 507 U.S. at 734. “It is
the defendant rather than the Government who bears the bur-
den of persuasion with respect to prejudice.” Id.
The Supreme Court has articulated several different formu-
lations of a defendant’s burden under the substantial rights
test. See Dominguez Benitez, 124 S. Ct. at 2342 (Scalia, J. dis-
senting) (“By my count, this Court has adopted no fewer than
four assertedly different standards of probability relating to
the assessment of whether the outcome of trial would have
been different if error had not occurred, or if omitted evidence
had been included.”). Most recently, in the context of a Rule
11 violation, the Court explained that a defendant “must show
a reasonable probability that, but for the error, he would not
have entered the plea.” Id. at 2339. More generally, the Court
stated:
UNITED STATES v. AMELINE 6395
A defendant must thus satisfy the judgment of the
reviewing court, informed by the entire record, that
the probability of a different result is sufficient to
undermine confidence in the outcome of the pro-
ceeding.
Id. at 2340 (quotations and citations omitted).
Applying this prejudice test to Booker error, we must deter-
mine whether there is a reasonable probability that, but for
the Booker error, the outcome of the defendant’s sentencing
proceeding would have been different so as to undermine our
confidence in the sentence. Because the Booker Court held
that an enhancement based on judge-found facts would not
have implicated a constitutional violation if the Guidelines
were advisory rather than mandatory, Booker, 125 S. Ct. at
750, in determining the prejudicial effect of the Booker error,
we must focus upon the mandatory nature of the system under
which the district judge enhanced the defendant’s sentence
rather than upon the use of judge-found facts in sentencing.
See Rodriguez, 398 F.3d at 1303 (“The prejudice inquiry must
focus on what has to be changed to remedy the error.”).
We must also consider the profound impact of the Supreme
Court’s decision in Booker on federal sentencing, because the
nature of the error may affect the application of the substantial
rights prong. See Olano, 507 U.S. at 735. To understand the
transforming nature of Booker, it helps to consider the nature
of sentencing proceedings before the implementation of the
mandatory federal Guidelines in 1987, which drastically
altered the practice of sentencing in the federal criminal jus-
tice system.
Before the Guidelines were implemented, Congress had
delegated virtually “unfettered discretion to the sentencing
judge to determine what the sentence should be within the
customarily wide range” of potential sentences prescribed by
statute. Mistretta v. United States, 488 U.S. 361 (1989). The
6396 UNITED STATES v. AMELINE
role of probation officers was to facilitate, rather than to cir-
cumscribe, judicial discretion. To this end, the primary pur-
pose of the presentence report was to “ ‘aid the court in
determining the appropriate sentence,’ ” and included “ ‘[a]n
assessment of the problems of the defendant and a consider-
ation for the safety of the community.’ ” Kate Stith and José
A. Cabranes, Judging Under the Federal Sentencing Guide-
lines, 91 NW U. L. Rev. 1247, 1250 (1997) (quoting Proba-
tion Div. Admin. Office of the U.S. Courts, Pub. No. 105, The
Presentence Investigation Report 1 (1987)). The presentence
report suggested a particular term of imprisonment, based on
national sentencing statistics and the officer’s informed judg-
ment, but the role of the probation officer in sentencing was
purely advisory. See id. at 1251. The sentencing judge could
make use of the information in the presentence report or disre-
gard it; the judge had complete discretion to balance the “vari-
ous goals of sentencing, the relevant aggravating and
mitigating circumstances, and the way in which these factors
would be combined in determining a specific sentence.”
United States Sentencing Commission, Report to Congress:
Downward Departures From the Federal Sentencing Guide-
lines, I, B-1 (2003) (quotations and citation omitted). The sen-
tencing judge was free to impose a sentence anywhere within
the statutory range, and could usually replace imprisonment
with probation, if he so chose. See Mistretta, 488 U.S. at 365.
Finally, judicial discretion was “unfettered” primarily because
appellate review of the district judge’s discretion was virtually
non-existent. See Dorszynski v. United States, 418 U.S. 424,
431 (1974) (“[O]nce it is determined that a sentence is within
the limitations set forth in the statute under which it is
imposed, appellate review is at an end.”). Judicial sentences
that fell within the prescribed range “were virtually unreview-
able on appeal.” Mistretta, 488 U.S. at 363.
Booker is a signal event in the development of the law. It
restored the complete discretion of sentencing judges to sen-
tence anywhere within the statutory range, so long as the sen-
tence is tethered to the congressional goals of sentencing set
UNITED STATES v. AMELINE 6397
forth in 18 U.S.C. § 3553(a). As the D.C. Circuit recently
stated, a sentencing court will have “committed no error . . .
so long as the sentence was within the prescribed statutory
range and is otherwise reasonable.” United States v. Coles,
403 F.3d 764, 768-69 (D.C. Cir. 2005). Similarly, the Fourth
Circuit, concluding that the district court engaged in “careful
deliberation,” held in a recent case that “because the district
court sentenced [the defendant] within the statutory guidelines
. . . we are of opinion [that] the sentence . . . is reasonable.”
United States v. Bartram, ___ F.3d ___, 2005 WL 994828 *4
(4th Cir. April 29, 2005). Moreover, the Sixth Circuit, also
reviewing a sentence for post-Booker reasonableness, has
adopted an abuse of discretion standard, thereby explicitly
reverting to the standard applicable in the pre-Guidelines era.
See United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir.
2005) (stating that Booker “extended unreasonableness—the
pre-PROTECT Act standard for reviewing departure
sentences—to the review of all sentences,” and proceeding to
review the district court’s sentencing decision for abuse of
discretion).
Given that we have reverted to a sentencing system very
close to that which existed before the Guidelines, it would be
fundamentally unfair to require that a defendant demonstrate
with 100 percent certainty that the district judge would have
sentenced him differently. Rather, the relaxed inquiry of
Dominguez Benitez is appropriate: we should determine
whether there is a reasonable probability that, but for the
Booker error, the outcome of the defendant’s sentencing pro-
ceeding would have been different so as to undermine our
confidence in the sentence.
Ameline, himself, has met this burden. Setting aside the
Howard error, the Booker error so infected Ameline’s sen-
tencing hearing that Ameline’s burden of showing a reason-
able probability that without the judicial fact-finding and
mandatory enhancements there would have been a different
sentence is easily met. We need not seek the district court’s
6398 UNITED STATES v. AMELINE
guidance as to whether the Booker error affected Ameline’s
substantial rights. In Ameline’s case, the sentencing judge
made factual findings by a preponderance of the evidence and
mandatorily enhanced Ameline’s sentence above the Guide-
lines range applicable to the facts as admitted by Ameline in
his plea agreement. Moreover, Ameline was sentenced under
an unconstitutional mandatory scheme that forbade the exer-
cise of the full measure of discretion that, after Booker, should
be accorded to sentencing judges. And, due to the mandatory
nature of the Guidelines when Ameline was sentenced, the
district judge was precluded from complying with 18 U.S.C.
§ 3553(a)’s directive to “impose a sentence sufficient, but not
greater than necessary,” to comply with the statutory purposes
of sentencing set forth in § 3553(a)(2). In addition, Ameline
vigorously disputed the amount of methamphetamine that the
government and the probation officer sought to attribute to his
offense conduct. Ameline did not argue for reductions based
on his “background, character and conduct,” U.S.S.G.
§ 1B1.4, because, at that time, such factors were irrelevant to
a determination of his Guidelines range. Finally, the record
reflects that this was Ameline’s first serious drug conviction
and that, at the time of allocution before the district judge, he
expressed remorse for his wrongful conduct. These circum-
stances are sufficient to satisfy the prejudice inquiry and to
establish a violation of Ameline’s substantial rights.
The Eleventh Circuit asked the right question in Rodriguez
in determining whether Booker error affected Rodriguez’s
substantial rights: whether there is a reasonable probability
that there would have been a different sentencing disposition
had the sentencing judge been aware that the Guidelines were
advisory. Nonetheless, it came up with the wrong answer,
holding that, because in most cases the answer will be “we
don’t know,” except in extraordinary circumstances, a defen-
dant will not be able to meet his burden of showing that his
substantial rights have been affected. Rodriguez, 398 F.3d at
1301. The Dominguez Benitez prejudice test is not limited to
what the district judge said on the record; rather, our decision
UNITED STATES v. AMELINE 6399
must be “informed by the entire record.” Dominguez Benitez,
124 S. Ct. at 2340. Review of the entire record, including the
presentence report, should in most cases reveal objective data
from which we can determine to a reasonable probability
whether a sentence would have differed but for the Booker
error.
The Eleventh Circuit’s overly demanding approach derives
from a misapplication of the Supreme Court’s plain error
analysis in Jones v. United States, 527 U.S. 373 (1999), in
which the Court considered an unpreserved jury instruction
error. As noted above, the Supreme Court redefined the preju-
dice inquiry in Dominguez Benitez. See Dominguez Benitez,
124 S. Ct. at 2339. Furthermore, in applying Jones, the Elev-
enth Circuit failed to consider the unique nature of the sen-
tencing process, which involves a choice of a point within a
broad range of discretion rather than an either-or choice, like
guilt or innocence. See Paladino, 401 F.3d at 482 (“Guilt is
either-or; the defendant is either guilty or innocent. . . . But
sentencing is not either-or; it is the choice of a point within
a range established by Congress, and normally the range is a
broad one.”).
Under the Eleventh Circuit’s approach, a pre-Booker defen-
dant’s right to resentencing depends largely upon whether the
district court stated on the record that it felt constrained by the
Guidelines or that it would have sentenced the defendant to a
lower sentence if the Guidelines were advisory rather than
mandatory. See Rodriguez, 398 F.3d at 1301 (holding that
Rodriguez failed to meet his burden under the third prong of
the plain error test because “[t]he record provides no reason
to believe any result is more likely than the other”); see also
United States v. Shelton, 400 F.3d 1325, 1333-34 (11th Cir.
2005) (applying Rodriguez and finding plain error only
because the record reflected the sentencing judge’s frustration
with the constraints imposed by the Guidelines). Although
explicit statements of frustration or similar sentiments in the
6400 UNITED STATES v. AMELINE
record would facilitate a finding of prejudice, such statements
by the sentencing judge are not required to show prejudice.
To the contrary: Because district judges were required to
follow the mandatory Guidelines, it would be unreasonable to
require defendants to point to criticism of, or disagreement
with, the Guidelines to establish a violation of their substan-
tial rights. Before Blakely, we, along with other courts, had
repeatedly instructed sentencing courts to impose sentences
within the applicable mandatory Guidelines range, with lim-
ited exceptions. “This well-established case law substantially
undermined any need or incentive for sentencing courts [pre-
Blakely] to note their objections and reservations in sentenc-
ing defendants under the then-mandatory Guidelines.” United
States v. Barnett, 398 F.3d 516, 528 (6th Cir. 2005).
Finally, at bottom, the Rodriguez court failed to meaning-
fully recognize Booker’s profound impact on federal
sentencing—restoring the discretion to the sentencing court
that the mandatory Guidelines had stripped away. Nor did the
Eleventh Circuit discuss the nature of the constitutional viola-
tion, which the Supreme Court has said can only be remedied
by making the Guidelines advisory. The Eleventh Circuit
gives short shrift to the very nature of the sentencing process
and imposes a fundamentally unfair burden on defendants by
requiring a defendant to demonstrate certainty in a different
outcome under the new sentencing scheme to gain the benefit
of a constitutionally sound sentencing process.
2. “Fairness and Integrity”
Unlike the majority, I believe we are required as an appel-
late court to analyze the fourth prong of the plain error test.
I would hold that the Booker error affected the fairness and
integrity of Ameline’s sentencing proceedings. Although
Ameline admitted to only a detectable amount of metham-
phetamine, and vigorously challenged the reliability of the
hearsay evidence presented in the Presentence Report to
UNITED STATES v. AMELINE 6401
increase his base offense level, the district court, under the
mandatory Guidelines, imposed a sentence that violated Ame-
line’s Sixth Amendment rights. As I have emphasized, the
sentencing judge was constrained by the mandatory features
of the Guidelines and had no opportunity to exercise the full
measure of discretion that was restored by Booker. Letting
Ameline’s sentence stand “simply because it may happen to
fall within the range of reasonableness unquestionably
impugns the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Hughes, 396 F.3d 374, 381 n.8
(4th Cir. 2005), amended on denial of reh’g en banc by 401
F.3d 540 (2005). “Moreover, declining to notice the error on
the basis that the sentence actually imposed is reasonable
would be tantamount to performing the sentencing function
ourselves.” Id. Therefore, I would hold that the district court’s
imposition of a 150-month sentence under the mandatory
Guidelines in violation of Ameline’s Sixth Amendment rights
as construed by Booker was plain error under Cotton, and that
the error is a ground independent of the Howard error for
vacating Ameline’s sentence and remanding his case for a
new sentencing hearing.
III.
Conclusion
I, therefore, dissent from the majority’s “limited remand”
approach to analyzing whether unpreserved claims of Booker
error constitute reversible plain error. Although I agree that
Ameline is entitled to a new Rule 32 sentencing hearing on
the basis of the Howard error, I believe that he is entitled to
that remedy, apart from the Howard error, because the Booker
error in his case was plain error, reversible under Cotton.
6402 UNITED STATES v. AMELINE
GOULD, Circuit Judge, with whom WARDLAW, Circuit
Judge, joins, and O’SCANNLAIN and BEA, Circuit Judges,
join in part, concurring in part and dissenting in part:
I concur in Parts I and V of the majority opinion, and in the
judgment vacating Ameline’s sentence and remanding for the
district court to give Ameline a new sentencing hearing con-
sistent with our precedent in United States v. Howard, 894
F.2d 1085, 1090 (9th Cir. 1990). I also concur in Judge
Wardlaw’s partial concurrence and partial dissent concerning
the proper approach under United States v. Booker, 125 S. Ct.
738 (2005), but write separately to elaborate my views.
I
The relief of resentencing for Ameline is required by How-
ard, 894 F.2d at 1090, and by the government’s concession of
error.1 An imprisoned person who shows a right to relief on
1
The government during the en banc oral argument explicitly conceded
that Howard required resentencing for Ameline:
Q: How do you deal with . . . the fact that the district court put
the burden on Ameline to disprove what was in the Presentence
Report? I mean, isn’t that a fundamental mistake that means
whatever else is the grand architecture of post-Booker sentencing
and what we do with it, that Mr. Ameline deserves another hear-
ing?
A: Yes. The district court in this case made an error [in shifting
the burden of proof at sentencing to Ameline] that is totally sepa-
rate and apart from the larger plain error questions on which this
court granted rehearing en banc. . . . I agree that the case should
go back for that reason because a starting point of discretionary
sentencing with advisory Guidelines is a correctly calculated
Guidelines range using the appropriate principles of judicial fact-
finding.
Q: Your argument is that we can’t simply affirm on the basis
of this record in this context?
A: I would be reluctant to suggest that the Court should affirm
because it’s the government’s position that in order for a court to
UNITED STATES v. AMELINE 6403
appeal must receive it in due measure, else due process is not
satisfied. See Hicks v. Oklahoma, 447 U.S. 343, 347 (1980)
(holding that state appellate court deprived petitioner of lib-
erty without due process of law by “simply affirm[ing] the
sentence imposed . . . under the invalid mandatory [sentenc-
ing] statute”); see also Lassiter v. Dep’t of Soc. Servs., 452
U.S. 18, 24 (1981) (“[D]ue process . . . . expresses the
requirement of ‘fundamental fairness.’ ”).
II
Although I join Judge Wardlaw’s dissent concerning our
procedures following Booker, I write separately to express my
own views in disagreement with the majority’s “limited
remand” approach derived from the Second Circuit’s United
States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005). I think
it wrong to delegate to the district courts the task of determin-
ing whether a defendant’s substantial rights have been
affected, because this is contrary to the Supreme Court’s pre-
cedents on the plain error standard of review.
Our review is for plain error because Ameline did not
object during his sentencing hearing on the ground that the
mandatory Guidelines or the procedures used to determine the
material sentencing facts were unconstitutional. See United
States v. Cotton, 535 U.S. 625, 628-29 (2002). A defendant
seeking relief under the plain error standard must show that
there was:
(1) error, (2) that is plain, and (3) that affect[s] sub-
stantial rights. If all three conditions are met, an
have a properly-implemented advisory Guidelines sentence it
needs to do the right procedural things in calculating the Guide-
lines sentence. And although it’s conceivable that the court could
find that the judge’s error in shifting the burden to the defendant
was ultimately in itself harmless . . . . I would acknowledge that
at the outset of the hearing the judge said things about giving the
PSR presumptive credence that probably went over the line.
6404 UNITED STATES v. AMELINE
appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seri-
ously affect[s] the fairness, integrity, or public repu-
tation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (alter-
ations in original) (internal quotation marks and citation omit-
ted); see also United States v. Recio, 371 F.3d 1093, 1100
(9th Cir. 2004).
I agree with the majority’s analysis of the first, second and
fourth prongs of the plain error test. The first prong is met
because Ameline’s Sixth Amendment rights as construed in
Booker were violated by the district court’s imposition of a
sentence that was enhanced based upon judicial fact-finding
and was selected under a mandatory Guidelines system. See
United States v. Olano, 507 U.S. 725, 732-33 (1993)
(“Deviation from a legal rule is ‘error’ unless the rule has
been waived.”); Maj. Op. at 6358.
The second prong is met because it is clear after Booker
that, given the mandatory nature of the Guidelines at the time
of Ameline’s sentencing, increasing Ameline’s punishment
based on facts not admitted by him or determined by a jury
beyond a reasonable doubt was contrary to his Sixth Amend-
ment rights. See Johnson, 520 U.S. at 468 (“[W]here the law
at the time of trial was settled and clearly contrary to the law
at the time of appeal[,] it is enough that an error be ‘plain’ at
the time of appellate consideration.”); Maj. Op. at 6358.
The fourth prong of the test, which limits our discretion to
notice forfeited Booker errors to cases where the errors seri-
ously affected the fairness and integrity of the defendants’
sentencing proceedings, Johnson, 520 U.S. at 467, is met
because “it is a miscarriage of justice to give a person an ille-
gal sentence, just as it is to convict an innocent person.” Maj.
Op. at 6364 (citing United States v. Paladino, 401 F.3d 471,
483 (7th Cir. 2005)).
UNITED STATES v. AMELINE 6405
However, the majority errs in its analysis of the third prong
of the plain error inquiry, and the majority’s departure from
our traditional appellate role may have negative implications
for many cases. The majority follows the Second Circuit’s
“limited remand” approach, delegating to the district courts
the task of determining whether a defendant’s substantial
rights have been affected. Crosby, 397 F.3d at 117-18. I can-
not accept the majority’s decision to adopt this approach,
because it is inconsistent with the Supreme Court’s precedents
on what is required to satisfy the “substantial rights” test.
For an error to affect “substantial rights,” it “must have
been prejudicial: It must have affected the outcome of the dis-
trict court proceedings.” Olano, 507 U.S. at 734. “It is the
defendant rather than the Government who bears the burden
of persuasion with respect to prejudice.” Id. To carry this bur-
den, the “defendant must . . . satisfy the judgment of the
reviewing court, informed by the entire record, that the proba-
bility of a different result is sufficient to undermine confi-
dence in the outcome of the proceeding.” United States v.
Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004) (internal
quotation marks omitted) (holding that defendant claiming
that plain Rule 11 error affected his substantial rights “must
show a reasonable probability that, but for the error, he would
not have entered the plea.”).
Applying Dominguez Benitez’s substantial rights test in the
Booker context, the Eleventh Circuit explained that “[t]he
prejudice inquiry must focus on what has to be changed to
remedy the error.” United States v. Rodriguez, 398 F.3d 1291,
1303 (11th Cir. 2005). I agree. The Supreme Court made clear
in Booker that the error in pre-Booker sentencing cases is not
simply that sentences were enhanced based on judge-found
facts, but that judge-found facts were used to arrive at Guide-
lines sentences that were binding on the district courts. 125
S. Ct. at 750 (Stevens, J., Op. of the Ct.) (“If the Guidelines
as currently written could be read as merely advisory provi-
sions . . . their use would not implicate the Sixth Amend-
6406 UNITED STATES v. AMELINE
ment.”); id. at 764 (Breyer, J., Op. of the Ct.) (“With these
two sections [that make the Guidelines mandatory] excised,
the remainder of the Act satisfies the Court’s constitutional
requirements.”). Thus, our assessment of the prejudicial effect
of a Booker error turns on whether the record reflects that
there is a “reasonable probability” that the outcome of Ame-
line’s sentencing proceeding would have been different if the
district court had considered the Guidelines to be advisory
when sentencing, rather than on the mere fact that Ameline’s
sentence was enhanced based on judicial findings of fact. See
United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005)
(holding that under substantial rights prong court must inquire
whether outcome of sentencing proceeding would have been
different if sentencing judge had considered the Guidelines
advisory); Paladino, 401 F.3d at 483 (same); United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005) (same);
Rodriguez, 398 F.3d at 1301 (same); Crosby, 397 F.3d at 117-
18 (same). But see United States v. Davis, No. 02-4521, 2005
WL 976941, at *1-2 (3d Cir. Apr. 28, 2005) (holding that
defendant can meet substantial rights prong by showing either
that sentence was enhanced based on judge-found facts or that
the district court erroneously believed Guidelines were man-
datory at time of sentencing); United States v. Hughes, 401
F.3d 540, 548-49 (4th Cir. 2005) (holding that substantial
rights prong was satisfied because defendant’s sentence was
increased beyond the sentence supported by the facts found
by the jury or admitted by defendant); United States v. Oliver,
397 F.3d 369, 379-80 (6th Cir. 2005) (same).
Ameline’s substantial rights were affected because extra-
verdict facts were used to enhance his sentence under Guide-
lines thought to be mandatory. At the time of his sentencing,
which took place before Booker restored sentencing discretion
to the district courts, Ameline challenged the amount of
methamphetamine that the government sought to use in calcu-
UNITED STATES v. AMELINE 6407
lating his base offense level. This was Ameline’s first drug con-
viction,2 and Ameline expressed remorse for his wrongdoing.
Then there is the procedural error that affected Ameline’s
sentencing hearing. The district court, contrary to our holding
in Howard, 894 F.2d at 1090, placed the burden on Ameline
to disprove the drug quantities attributed to him in the Presen-
tence Report. Had the district court required the government
to meet its burden of proof to establish the factual predicate
for the amount of methamphetamine it attributed to Ameline
for purposes of determining the base offense level under
U.S.S.G. § 2D1.1, the district court may have attributed a
lesser drug quantity to Ameline. This is especially so, in light
of the multiple layers of hearsay Ameline alleged that the dis-
trict court relied upon in making its drug quantity determina-
tion. Maj. Op. at 6353-54. A lesser drug quantity in turn
might have led the district court to use an entirely different
Guidelines range, and may have also prompted the district
court to exercise discretion, if any were available, to give
Ameline a lighter sentence.
Indeed, the district court stated at Ameline’s sentencing
hearing that it was “somewhat baffl[ed]” by Ameline’s “elec-
tion to engage in this very serious and extremely detrimental-
to-the-community conduct” because of Ameline’s “history
and the fact that [he was] of an age that [he was], and ha[d]
in some ways held [him]self out as a responsible individual.”
That the district court expressed surprise that Ameline had
trafficked in the large quantities of methamphetamine attri-
buted to him by the Presentence Report bolsters the conclu-
sion that there is a reasonable probability that the outcome of
Ameline’s sentencing proceeding would have been different
if the district court had used the proper factfinding procedure
and had not been bound by the Guidelines at the time of sen-
tencing.
2
Ameline only had one prior conviction in 1997 for “Issuing a Bad
Check.”
6408 UNITED STATES v. AMELINE
The government argues that Ameline cannot show a rea-
sonable probability that he would have received a different
sentence if the Guidelines had been discretionary at the time
of his sentencing because the district court’s comments sug-
gested that the court deliberately opted not to exercise even
the limited discretion that it had under the mandatory Guide-
lines, and instead imposed a sentence in the middle of the
applicable Guidelines range after considering the circum-
stances of Ameline’s offense conduct. In fashioning its sen-
tence, the district court noted that Ameline’s conduct had
allegedly involved “multiple transactions of distribution of
[an] unlawful substance . . . over an extended period of time,”
and expressed its view that this conduct was “very serious and
extremely detrimental to the community” and “without ques-
tion . . . hurt . . . many people.”
While we should not minimize the seriousness of Ame-
line’s wrongful conduct, these statements by the district court
could be used to describe the heartland of any drug offense.
In addition, it is a non sequitur for the government to argue
that we can discern, from Ameline’s middle-of-the-
Guidelines-range sentence, whether the district court would
have imposed the same sentence if free of the mandatory
nature of the Guidelines. It is equally as likely that the district
court had a policy of consistently sentencing in the middle of
the Guidelines range. See United States v. Barnett, 398 F.3d
516, 528 (6th Cir. 2005) (“That the district court chose to sen-
tence Barnett in the middle of [the mandatory Guidelines]
range does not necessarily suggest that the district court
would now feel that 265 months of imprisonment is the
proper sentence for Barnett. Nor does it suggest that the court
would not have sentenced Barnett to a lower sentence if it had
the discretion, which it does now, to apply the Guidelines in
an advisory fashion.”).
I acknowledge that we cannot be certain what sentence the
district court would have imposed had it treated the Guide-
lines as advisory only. As some of our sister circuits have
UNITED STATES v. AMELINE 6409
already pointed out, “We just don’t know.” Rodriguez, 398
F.3d at 1301; see also Paladino, 401 F.3d at 483; Crosby, 397
F.3d at 118. The sentencing record often does not reflect the
subtleties that may influence the district court’s sentencing
discretion or how the human dynamics of a sentencing hear-
ing may influence the court’s ultimate sentencing decision.
Absent an express statement by the district court that it would
have either sentenced a defendant more favorably or reached
the same result if the Guidelines were not mandatory, we can
never be certain how any particular district court would have
exercised discretionary sentencing authority.
However, I disagree with the reasoning of those who favor
a blanket approach to handling Booker plain error cases
(whether they advocate denying relief or remanding in all
cases) because of this uncertainty, for certainty has never been
required to satisfy the prejudice inquiry in the context of plain
error review. Rather, all that is required is that there be a “rea-
sonable probability” that the error complained of affected the
outcome of the proceedings. Dominguez Benitez, 124 S. Ct. at
2340.
Specifically with respect to a blanket denial rule such as the
one urged by the government, it would be most unfair and
unreasonable for us to ground our prejudice analysis on the
fortuity of whether a defendant was sentenced by a particular
sentencing judge who openly criticized the Guidelines or indi-
cated that they were unduly harsh as applied to a particular
defendant rather than one who felt constrained quietly to fol-
low the law. Our judicial system is predicated on judges fol-
lowing the law and, so far as is humanly possible, keeping
their personal opinions to themselves. See Coalition for Econ.
Equity v. Wilson, 122 F.3d 692, 717 (9th Cir. 1997) (Norris,
J., dissenting from denial of reh’g en banc) (quoting Planned
Parenthood v. Casey, 505 U.S. 833, 868 (1992) (O’Connor,
Souter & Kennedy, JJ., joint op.) (“It is the responsibility of
all federal judges . . . to ‘struggle to accept’ [the burden of
rendering decisions of which they disapprove] . . . . ‘because
6410 UNITED STATES v. AMELINE
[we] respect the rule of law.’ ”).3 And before Booker, we con-
sistently required sentencing courts to comply with the man-
dates of the Guidelines. See, e.g., United States v. Chastain,
84 F.3d 321, 323-26 (9th Cir. 1996); United States v. Vilchez,
967 F.2d 1351, 1355 (9th Cir. 1992). “This well-established
case law substantially undermined any need or incentive for
sentencing courts pre-Booker to note their objections and res-
ervations in sentencing defendants under the then-mandatory
Guidelines.” Barnett, 398 F.3d at 529. Given these realities,
we cannot now require defendants seeking to establish that
their substantial rights have been affected by Booker error to
present us with these types of statements, which sentencing
courts had no reason to make on the record under our prior
case law. Cf. Antonakopoulos, 399 F.3d at 81 (“The existence
of prejudice should not turn on how vocal the district judge
was.”). I would hold that Ameline has met his burden of
showing that there is a reasonable probability that he would
have received a different sentence if the district court had con-
sidered the Guidelines to be advisory when sentencing, not-
withstanding that there is no affirmative statement by the
district court to this effect.
The majority, however, does not express any holding on
whether the substantial rights requirement has been satisfied
3
As Justice Potter Stewart sagely observed during a press conference at
the Supreme Court at the time of his retirement:
[T]he mark of a good Justice or any judge is one whose Opin-
ions you can read and, after you have read them, you have no
idea whether the judge was a man or a woman, a Republican or
a Democrat, a Christian or a Jew, or—if a Christian, a Protestant
or Catholic. You just know that he or she was a good judge.
It is the first duty of a judge to remove from his judicial work
his own social and philosophical and political or religious beliefs,
and not to think of himself as being here as some great
philosopher-king to just apply his own ideology.
Barrett McGurn, America’s Court: The Supreme Court and the People 105
(1997).
UNITED STATES v. AMELINE 6411
here in Ameline’s case. Instead the majority follows the Sec-
ond Circuit in instituting a blanket “limited remand” rule for
cases involving unpreserved Booker error where there is no
clear statement from the district court in the record about what
it would do if the Guidelines were merely advisory. Under
this approach, all such cases will be remanded so that the dis-
trict court can consider whether it would have imposed the
same sentence if the Guidelines had been advisory at the time
of sentencing. Maj. Op. at 6359-60; Crosby, 397 F.3d at 117-
18. If the district court concludes that the sentence would
have been the same, there is no prejudice to the defendant,
and the initial sentence stands. Maj. Op. at 6359-60; Crosby,
397 F.3d at 117. But if the district court determines that it
would have given the defendant a materially different sen-
tence under the Booker rules, then the defendant’s substantial
rights were affected by the error, and he or she is entitled to
resentencing. Maj. Op. at 6359-60; Crosby, 397 F.3d at 117.
This “ask the district court” approach is wrong for many rea-
sons.
First, I do not see how we can justify adopting a bright-line,
“one size fits all” rule if we truly are “to apply [the] ordinary
prudential doctrine[ ]” of plain error review, as Justice
Breyer’s remedial opinion in Booker admonished us to do.
125 S. Ct. at 769; see also Paladino, 401 F.3d at 487 (Ripple,
J., dissenting from denial of reh’g en banc) (“The panel deci-
sion today [adopting limited remand bright-line rule for
Booker cases] offers a superficially pragmatic, but not a prin-
cipled, basis for adopting its novel approach to plain error
analysis.”). In United States v. Young, the Supreme Court
declared that “[a] per se approach to plain-error review is
flawed.” 470 U.S. 1, 16 n.14 (1985). The Court further
stressed that “when addressing plain error, a reviewing court
cannot properly evaluate a case except by viewing such a
claim against the entire record,” and that “it is particularly
important for appellate courts . . . not to extract from episodes
in isolation abstract questions of evidence and procedure”
because “[t]o turn a criminal trial into a quest for error no
6412 UNITED STATES v. AMELINE
more promotes the ends of justice than to acquiesce in low
standards of criminal prosecution.” Id. at 16.
Most recently, in Dominguez Benitez, the Supreme Court
reemphasized the necessity of a case-by-case, fact-intensive
approach to the prejudice inquiry of the plain error test, by
stating that a defendant seeking reversal for unpreserved Rule
11 error “must thus satisfy the judgment of the reviewing
court, informed by the entire record, that the” error affected
his or her substantial rights. 124 S. Ct. at 2340 (emphasis
added). The Court thus rejected the standard this circuit had
used in deciding whether a defendant was prejudiced by Rule
11 error because that standard “d[id] not allow consideration
of any record evidence tending to show that a misunderstand-
ing [occasioned by the error] was inconsequential to a defen-
dant’s decision, or evidence indicating the relative
significance of other facts that may have borne on his choice
regardless of any Rule 11 error.” Id. at 2341. The majority’s
blanket rule for pre-Booker cases involving unpreserved
Booker errors cannot be reconciled with these Supreme Court
cases requiring case-specific assessments of prejudice in the
context of plain error review.
Second, the majority’s decision to remand for the district
courts to make substantial rights determinations conflicts with
the guidance of Booker, which expressly instructs that it is the
duty of “reviewing courts,” not district courts, to determine
whether a sentencing error was plain. Booker, 125 S. Ct. at
769 (“[W]e expect reviewing courts to apply ordinary pruden-
tial doctrines, determining, for example, whether the issue
was raised below and whether it fails the ‘plain-error’ test.”);
see also Mares, 402 F.3d at 522 (“[W]e find no support for
[the limited remand] approach in the Supreme Court plain
error cases. Those cases place the obligation on the appellate
courts—rather than the district courts—to determine the third
prong of the plain error test.”); Rodriguez, 398 F.3d at 1305
(“The determination of plain error is the duty of courts of
appeal, not district courts.”). Even before Booker, the
UNITED STATES v. AMELINE 6413
Supreme Court consistently indicated that plain error review
should occur at the appellate level, see, e.g., Dominguez
Benitez, 124 S. Ct. at 2340 (explaining that under the plain
error standard, “[a] defendant must thus satisfy the judgment
of the reviewing court, informed by the entire record, that the
probability of a different result is ‘sufficient to undermine
confidence in the outcome’ of the proceeding”) (emphasis
added); United States v. Vonn, 535 U.S. 55, 59 (2002) (hold-
ing that under the plain error standard, “a reviewing court
may consult the whole record when considering the effect of
any error on substantial rights”) (emphasis added), and there
is nothing in Booker that “suggest[s] that this accepted prac-
tice must change in the wake of Booker,” United States v.
Milan, 398 F.3d 445, 454 (6th Cir. 2005). On the contrary, the
Supreme Court in Booker emphasized that “ordinary” plain
error rules should apply. 125 S. Ct. at 769.
Tracking Crosby’s rationale, the majority points to 18
U.S.C. § 3742(f) as authority for its assertion that the limited
remand option “is available for election by an appellate court
assessing [plain] error [in sentencing],” reasoning that “the
power to remand for resentencing [under 18 U.S.C. § 3742(f)]
necessarily encompasses the lesser power to order a limited
remand” to permit the sentencing judge to determine whether
the third prong of the plain error inquiry is met. Maj. Op. at
6360 (citing Crosby, 397 F.3d at 117-18). But the Eleventh
Circuit has already observed that this “conclusion does not
follow at all,” because “[i]n cases of non-preserved error
appellate courts lack the authority to remand for resentencing
where the requirements of the plain error rule have not been
met.” Rodriguez, 398 F.3d at 1306. Assuming that the greater
power to remand for resentencing does include the lesser
power to do a limited remand, the majority puts the cart
before the horse by seeking to justify a limited remand for the
district court to determine the substantial rights issue on the
ground that this power is encompassed by its power to do a
full remand, when the majority cannot exercise full remand
power unless and until all four requirements of the plain error
6414 UNITED STATES v. AMELINE
test are satisfied. Even the plain language of § 3742(f), the
subsection on which the majority relies, conditions the power
to “remand the case for further sentencing proceedings” on
“the court of appeals determin[ing] that . . . the sentence was
imposed in violation of law.” 18 U.S.C. § 3742(f)(1) (empha-
sis added).
The majority’s attempt to bring this case within the rule
recited in United States v. Gunning, 401 F.3d 1145 (9th Cir.
2005), about our ability to limit the scope of issues on
remand, is unpersuasive. Maj. Op. at 6360-61. In Gunning,
we ordered a limited remand on the issue of the defendant-
appellant’s eligibility for a minor role adjustment under the
Sentencing Guidelines because we could not discern from the
record whether that issue had been considered by the district
court. 401 F.3d at 1146, 1148. But remanding in a particular
case on an issue properly raised in the first instance at the dis-
trict court level so that we might develop the record we need
to dispose of an appeal is one thing. Establishing a general
rule that requires remands in countless cases where we
already have a record so that the district courts can handle the
disposition of sentencing appeals themselves is quite another.
Gunning is inapposite because the majority is not asking the
district courts to provide us with additional information to aid
our review of an issue that initially should have been raised
at the district court level. Rather it is asking the district courts
to conduct the plain error inquiry in our stead, applying what
has always been an appellate standard of review to sentences
they themselves had imposed. Maj. Op. at 6360-61.
Third, the majority argues that we should ask the sentenc-
ing judges what they would have done under advisory Guide-
lines because we cannot otherwise know whether defendants’
rights were substantially affected by Booker errors. Maj. Op.
at 6361-62 (expressing preference for limited remand option
because it “yields a result that is certain”); id. at 6362-63. But
this argument rests on the faulty premise that courts reviewing
for plain Booker error must be able to determine prejudice to
UNITED STATES v. AMELINE 6415
defendants asserting such error with certainty. As noted
above, all that the Supreme Court requires in the context of
plain error review is a “reasonable probability” of prejudice,
Dominguez Benitez, 124 S. Ct. at 2340.
To illuminate this point, we can look not only to what the
Supreme Court has said about the prejudice inquiry under the
plain error test, but also to what it has done in the analogous
context of conducting harmless error review of district court
errors in sentencing under the Guidelines. See Olano, 507
U.S. at 734 (explaining that the plain error standard “normally
requires the same kind of inquiry” as the harmless error stan-
dard except that the burden of persuasion is on the defendant
instead of the government). In Koon v. United States, 518
U.S. 81, 113 (1996), the Supreme Court invalidated some of
the factors that the district court had relied on to depart from
the applicable sentencing range under the Guidelines. The
Supreme Court then evaluated the record before it to deter-
mine if the error was harmless, and remanded for resentencing
because “it [wa]s not evident [from the record] that the [dis-
trict] court would have imposed the same sentence if it had
relied only on [permissible grounds for departure].” Id. at
113-14; see also Williams v. United States, 503 U.S. 193,
202-03 (1992) (same). Despite that there was no way for the
Supreme Court to be certain whether the district court would
or would not have sentenced the defendant differently, the
Court notably did not remand for the district court’s input on
whether the defendant’s substantial rights were affected by
the error.
Finally, the majority’s rule does not effectively advance the
purposes of the plain error doctrine to promote the efficient
administration of justice while ensuring that the gravest injus-
tices do not go unchecked. As the Supreme Court explained
in Young, the plain error standard provides a “careful balanc-
ing of our need to encourage all trial participants to seek a fair
and accurate trial the first time around against our insistence
that obvious injustice be promptly redressed.” 470 U.S. at 15;
6416 UNITED STATES v. AMELINE
see also United States v. Wilson, 237 F.3d 827, 836 (7th Cir.
2001) (“The plain-error standard, which we are required to
apply when a district court has not been given the first oppor-
tunity to correct alleged mistakes, strikes a balance among the
proper functioning of the adversary system, efficiency in
managing litigation, and the demands of justice.”) (internal
citation omitted).
Although the majority’s per se rule delegating the substan-
tial rights inquiry to the district courts might make our task of
reviewing pre-Booker plain error cases easier at the outset, it
regrettably may prove to be a less efficient approach in the
long run than performing traditional case-by-case plain error
review at the appellate level. Under the limited remand
approach, a district court will have to “obtain the views of
counsel, at least in writing,” so attorneys can reargue sentenc-
ing issues as they would have if Booker had been the law at
the time of the original sentencing. Maj. Op. at 6370; Crosby,
397 F.3d at 120. The district court will next evaluate the
record as supplemented by the attorneys’ arguments, and then,
treating the Guidelines as discretionary, will decide if it would
impose a materially different sentence. Maj. Op. at 6364;
Crosby, 397 F.3d at 120. As the Eleventh Circuit observed in
Rodriguez, this rule “essentially requires resentencing [albeit
with truncated procedures] in order to determine whether
resentencing is required,” and then “add[s] the real possibility
of another appeal and another remand on top of that,” because
the parties retain the right to appeal the district court’s deci-
sion on whether it would have imposed a different sentence
under an advisory sentencing system. 398 F.3d at 1305; see
also Mares, 402 F.3d at 522 (agreeing with the Eleventh Cir-
cuit that the limited remand approach “has the potential of
producing many needless remands and appeals from those
remands,” and voicing the belief that “the Supreme Court
sought to avoid these extra steps in the judicial process by
requiring appellate courts to answer all prongs of the plain
error test”).
UNITED STATES v. AMELINE 6417
Not only is the majority’s rule unlikely to increase our effi-
ciency in processing Booker plain error cases, it provides
inadequate protection for those defendants with valid plain
error claims. If we were to apply plain error review at the
appellate level as the Supreme Court’s precedents direct us to
do, we would narrow the pool of cases for remand to those
where the record demonstrates that there was a reasonable
probability the defendant would have received a different sen-
tence if the district court could have exercised discretion in
sentencing. Because we would vacate the original sentences
in such cases and require the district court to resentence in
accordance with Booker, those defendants would get the full
benefit of the Supreme Court’s ruling. Thus application of tra-
ditional plain error review in this context of forfeited Booker
error would properly ensure that judicial resources are only
expended for resentencing in cases involving miscarriages of
justice that plainly warrant correction, while also ensuring
that the defendants in those select cases will be sentenced in
a manner that does not violate their constitutional rights as
construed by the Supreme Court in Booker.
With its limited remand approach to plain error review, the
majority decrees that every pre-Booker defendant asserting
plain error will receive a “quick look” at the district court
level. But the risk of this widespread remedy is that those
defendants that actually have plainly erroneous sentences
might not get the full attention that they deserve. Judge Ripple
from the Seventh Circuit articulated this concern persuasively
in his dissent from the Seventh Circuit’s decision to adopt the
same type of limited remand rule, stating that such an
approach “[i]n all too many instances . . . will serve as an
invitation for the district court to give only a superficial look
at the earlier unconstitutionally-imposed sentence,” and that
“[t]he constitutional right at stake hardly is vindicated by a
looks-all-right-to-me assessment by a busy district court.”
Paladino, 401 F.3d at 486 (Ripple, J., dissenting from denial
of reh’g en banc).
6418 UNITED STATES v. AMELINE
The majority claims that it is reluctant to speculate as to
what the district court would have done under the Booker
rules, but the solution the majority adopts does not really
address this concern because the majority in essence is asking
the district court to speculate in its stead. The inescapable
reality is that:
Until the district court undertakes a new sentencing
process—cognizant of the freedom to impose any
sentence it deems appropriate as long as the applica-
ble guidelines range and the 18 U.S.C. § 3553(a) fac-
tors are considered—the district court cannot
accurately assess whether and how its discretion
ought to be exercised. The panel’s holding requires
the [district] court to pre-judge and to pre-evaluate
evidence it has not heard.
Id.
Because “the universe of factors that guides sentencing is
larger than it was pre-Booker,” id. at 488 (Kanne, J., dissent-
ing from denial of reh’g en banc), there are many issues that
defendants before Booker might not have raised or empha-
sized at their original sentencing hearings that the district
courts can now freely consider under the advisory Guidelines
system. Requiring the district court to obtain the views of
counsel in writing does not make the abbreviated process out-
lined by the majority an adequate substitute for the sentencing
process mandated by Booker. Sentencing involves “subtle
issues as to how much emphasis ought to be given to particu-
lar facts and circumstances” that can be resolved “compe-
tently only after hearing witnesses and seeing the evidence.”
Id. at 486 (Ripple, J., dissenting from denial of reh’g en banc).
Additionally, a district judge reviewing a cold, incomplete
record supplemented by written arguments does not have the
benefit of evaluating the relevant facts in the context of the
human dynamics that come into play during sentencing hear-
ings. In short, it is hard to see how even the original sentenc-
UNITED STATES v. AMELINE 6419
ing judges would be able to give an accurate assessment of
how they would have acted had the Guidelines been advisory
when they were sentencing pre-Booker defendants. We gain
little by delegating to the district courts our duty as appellate
judges to conduct plain error review, because the limited
remand approach is neither more efficient nor more accurate
than the conventional approach in determining whether a
defendant’s substantial rights have been affected by sentenc-
ing error.
I respectfully dissent.
O’SCANNLAIN, Circuit Judge, with whom Judge Bea joins,
concurring in part and dissenting in part:
With hundreds of Booker-implicated cases awaiting dispo-
sition, we have chosen one of the worst possible vehicles in
our inventory—one that presents a clear sentencing error
unrelated to the constitutional issue for which we took it en
banc to decide. I am fascinated that while we unanimously
agree that Ameline’s sentence must be vacated and remanded
to the district court for resentencing because of the Howard
error, the district court judge in this case is free to resentence
on a clean slate and to apply Booker as he sees fit.
However, since the Court now promulgates the Second Cir-
cuit’s “limited remand” without vacatur approach as our stan-
dard for all other pending Booker-related appeals, I would,
instead, follow the jurisprudence of the Fifth and Eleventh
Circuits as described in, respectively, United States v. Mares,
402 F.3d 511 (5th Cir. 2005), and United States v. Rodriguez,
398 F.3d 1291 (11th Cir. 2005), and simply apply plain error
review with our usual vigor—to use the majority’s language
—“the way plain error review normally works.” Maj. op. at
6362.
6420 UNITED STATES v. AMELINE
Forced to make the best of our predicament, I concur in
Parts I, II and V of Judge Rawlinson’s majority opinion and
its result; I join Part I of Judge Wardlaw’s lead dissent; and
I join Judge Gould’s dissent, with the exception of his analy-
sis of the third prong of plain error review.
BEA, Circuit Judge, concurring in part and dissenting in part:
I agree that Ameline’s sentence must be vacated and
remanded due to the district court’s error under United States
v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). I therefore
concur in Parts I, II and V of the majority opinion. I also con-
cur in the concurring and dissenting opinions of Judges
O’Scannlain, Wardlaw (Part I), and Gould to the extent they
conclude it is the responsibility of this court, not the district
court, to determine whether “the probability of a different
result is sufficient to undermine confidence in the outcome of
the proceeding.” United States v. Dominguez Benitez, 124
S. Ct. 2333, 2340 (2004).
I disagree with all of my colleagues, however, as to how
this court should conduct its review in cases in which there is
forfeited Booker error, but the record as to sentencing is not
sufficiently developed to discern whether the error prejudiced
the defendant. I therefore dissent from Parts III, IV and VI of
the majority opinion, and the dissenting opinions that would
restrict appellate court review of the effect of such Booker
error to the record before the sentencing court.
Two considerations drive my analysis of how forfeited
Booker error must be addressed. First, we must not abdicate
our responsibility as the reviewing court to determine whether
plain error has occurred. Second, the defendant should be
given a proper opportunity to present evidence on the third
element of the plain-error doctrine—to establish “that the
probability of a different result is sufficient to undermine con-
UNITED STATES v. AMELINE 6421
fidence in the outcome of the proceeding.” Dominguez
Benitez, 124 S. Ct. at 2340 (citations and internal quotation
marks omitted); see also United States v. Olano, 507 U.S.
725, 731-32 (1993).
I. This Court—Not the District Court—Must
Determine Prejudice
In Booker, the Supreme Court specifically stated that it
expects the appellate courts to apply the plain-error doctrine
to cases raising a Booker issue on appeal where no objection
was made below:
[W]e must apply today’s holdings—both the Sixth
Amendment holding and our remedial interpretation
of the Sentencing Act—to all cases on direct review.
. . . That fact does not mean that we believe that
every sentence gives rise to a Sixth Amendment vio-
lation. Nor do we believe that every appeal will lead
to a new sentencing hearing. That is because we
expect reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the
issue was raised below and whether it fails the
“plain-error” test.
United States v. Booker, 125 S. Ct. 738, 769 (2005) (citations
omitted, emphasis added). In contemplating that the plain-
error doctrine would apply, the Supreme Court could have
modified the doctrine if it had thought the district courts,
rather than the reviewing courts, should determine the third
prong. But the Supreme Court did not modify the plain-error
doctrine in this manner, and this court may not do so. Thus,
although I agree that a remand is a practical solution, and cer-
tainly the most convenient solution for the appellate courts, it
is not what Booker and Dominguez Benitez tell us to do. We
do not have the authority to overrule Supreme Court prece-
6422 UNITED STATES v. AMELINE
dent and abdicate our non-delegable duty.1 Agostini v. Felton,
521 U.S. 203, 237 (1997).
II. The Proper Procedure
This is not the typical case involving the plain-error doc-
trine. I agree with Judges Wardlaw and Gould the record here
is sufficient to allow this reviewing court to conclude both the
third and fourth prongs of the Olano test are satisfied. Olano,
507 U.S. at 731-32.
However, the substantive law of what a court can consider
at sentencing has changed since the pre-Booker sentencing
hearings. The majority concludes that on remand the “views
of counsel, at least in writing” should be obtained. Maj. Op.
at 6370. But it doesn’t do much good to allow counsel to
argue reasons for a lighter sentence if the record does not con-
tain facts from which such argument can be made. It is a com-
monplace that argument must be based on facts. This is
especially so when the mandatory Sentencing Guidelines in
effect before Booker prohibited the sentencing court from
considering some of the facts that the court can consider now
that the Sentencing Guidelines are merely discretionary. Com-
pare, e.g., 18 U.S.C. § 3553(a) with U.S.S.G. § 5H1.
Only a prescient defendant would have made a factual
record just in case the Guidelines were ruled to be discretion-
ary. Few, if any, saw this result coming. And even if counsel
in a particular case had foreseen this result, it is unlikely he
would have made an offer of proof of facts which, at the time,
the trial judge could not consider. Counsel would have had to
risk the trial judge’s ire for wasting the court’s time and his
clients’ anxiety for upsetting the judge. In short, no counsel
with trial experience would have offered the very evidence
1
Additionally, for the reasons ably pointed out by Judges Wardlaw and
Gould, a “quick look” remand may not be the easiest solution after all.
UNITED STATES v. AMELINE 6423
the Sentencing Guidelines explicitly said the trial judge could
not consider.
What then are we to do now that such evidence is relevant
if the defendant is re-sentenced? The defendant must be given
a proper opportunity to present evidence to this court to prove
he was prejudiced by the error, which the post-Booker deci-
sions by the First, Fifth, and Eleventh Circuits do not give a
defendant. See United States v. Mares, 402 F.3d 511 (5th Cir.
2005); United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.
2005); United States v. Rodriguez, 398 F.3d 1291 (11th Cir.
2005). The defendant may want to present evidence on the
many factors that are now relevant to sentencing that the sen-
tencing judge could not consider under the mandatory Guide-
lines.2
Normally, documents or exhibits that were not filed with
the district court, admitted into evidence, nor considered by
the district court cannot be filed as part of the record. See, e.g.
2
Such factors include:
(1) specific offender characteristics under 18 U.S.C. § 3553(a)
that were barred by U.S.S.G. § 5H1, such as: age; educa-
tional and vocational skills; employment record; family ties
and responsibilities; military, civic, charitable or public ser-
vice; employment-related contributions; prior good works;
lack of guidance as a youth; and a disadvantaged upbring-
ing;
(2) the fact that “imprisonment is not an appropriate means of
promoting correction and rehabilitation” under 18 U.S.C.
§ 3882(a);
(3) comparative statistical evidence of sentencing for similar
state crimes; and
(4) any other information about the defendant that is relevant.
See 18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and con-
duct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose
of imposing an appropriate sentence.”).
6424 UNITED STATES v. AMELINE
Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th
Cir. 1988) (appellate courts consider only the “record before
the trial judge when his decision was made”) (emphasis in
original; internal quotes omitted); Tonry v. Security Experts,
Inc., 20 F.3d 967, 974 (9th Cir. 1994) (arbitrator’s decision
was improperly included in appellant’s excerpts of record
because it was never filed with the district court). Motions to
supplement the record generally are not granted by this court
if the evidence was not considered by the trial court below.
See Southwest Center for Biological Diversity v. United States
Forest Serv., 307 F.3d 964, 975 n.15 (9th Cir. 2002). Simi-
larly, judicial notice is also of limited use in this context
because the proffered fact “must be one not subject to reason-
able dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accu-
rate and ready determination by resort to sources whose accu-
racy cannot reasonably be questioned.” FED. R. EVID. 201.
How then can the defendant meet his burden? One way to
present new evidence on appeal is to attach that evidence to
a motion to remand. FED. R. APP. P. 27(a)(2)(B); see also
United States v. Christy, 3 F.3d 765, 768 (4th Cir. 1993).
Defendants should be given an opportunity to make a motion
for either a full or a limited remand.3 Defendants would then
have the opportunity to adduce evidence upon which they
could argue the now-relevant sentencing factors at a re-
sentencing and how this new evidence would likely affect
their sentence. The evidence presented can be as simple as the
defendant’s affidavit or an affidavit by the attorney of what
evidence he intends to adduce at the possible sentencing and
upon which he was not able to rely before. The prosecution
would then be free to attempt to rebut that evidence in its
response to the motion. FED. R. APP. P. 27(a)(3).
3
Where the only issue in the case is a Booker issue, then the motion
should be for a full remand because there is no need for this court to retain
jurisdiction over the appeal. Where there are other issues in the case, the
motion should be for a limited remand.
UNITED STATES v. AMELINE 6425
Finally, in evaluating the defendant’s evidence, the test
should be an objective test of whether a reasonable judge
would have given the defendant a lower sentence such that it
“undermines our confidence” in the outcome. We should not
use a subjective standard which focuses on the particular
judge who first imposed sentence.
III. Conclusion
Clearly the current state of the law has engendered some
confusion. The circuit courts cannot agree what is to be done,
and even within our own circuit, there are numerous and
divergent opinions. The result is that the very uniformity in
sentencing which the Court strove to preserve even while dra-
matically changing the sentencing procedures is still a distant
goal. Perhaps the Court will develop a workable solution in
one or more of these post-Booker cases, quite possibly involv-
ing a change to the plain-error doctrine. But unless and until
that happens, I believe we are bound to apply existing law to
the Booker issues.