Pubdate: Thu, 02 Jun 2005
Source: Recorder, The (CA)
Copyright: 2005, NLP IP Company
Contact:  http://www.callaw.com/
Details: http://www.mapinc.org/media/652
Author: Jeff Chorney, The Recorder
See: The U.S. v. Ameline opinion at June, 2005 here 
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/Opinions+by+date
Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal Sentencing)

9TH CIRCUIT SPLITS ON RESENTENCING

7-4 Ruling Tells District Courts to Decide Fate of Hundreds of 'Booker' Appeals

The 9th U.S. Circuit Court of Appeals gave district judges limited
power to review their own sentences Wednesday in a compromise to
resolving the hundreds of appeals thrown into disarray by U.S. v. Booker.

Wednesday's fractured 7-4 en banc decision was one of the most
acrimonious to come out of the circuit in recent memory. Dissenters
accused the majority of not following Supreme Court precedent and of
placing administrative concerns over the interests of justice. Neither
defense attorneys nor the U.S. Department of Justice had requested the
majority's "limited remand" approach to resolving cases affected by
Booker.

"Essentially, this is a punt," said Douglas Berman, a professor at
Ohio State University's Michael E. Moritz College of Law who runs the
Sentencing Law and Policy Blog.

Wednesday's ruling said that if the record is unclear regarding plain
error, a limited district court remand is appropriate to figure out
whether the sentence imposed would have been different had the
district court known that the sentencing guidelines were only
advisory, as the U.S. Supreme Court decided in Booker.

Steven Hubachek of Federal Defenders of San Diego, who represented
defendant Alfred Ameline in the appeal, said he was pleased the panel
didn't adopt prosecutors' recommendations. But he worried that the 9th
Circuit did not address whether defendants will get a full rehearing
as the district judge reconsiders sentencing.

"It seems to me they've left it pretty vague," Hubachek
said.

Although he had not yet discussed the result with Ameline, who was
convicted of conspiring to distribute methamphetamine in Montana and
is currently in federal prison, Hubachek said he didn't think he would
appeal the en banc ruling to the U.S. Supreme Court.

Still, the issue may reach the high court through other means. A
similar case out of the 11th Circuit has a certiorari petition
pending, and the Justice Department has recommended justices take the
case.

There are about 500 appeals in limbo at the 9th Circuit, with as many
as 200 more in the pipeline, according to the clerk's office. Now,
most of those will head back to district court for judges to reconsider.

"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 ... and everyone will
be left to wonder about whether the sentencing court might have acted
differently," Judge Johnnie Rawlinson wrote in the 33-page majority
opinion. "It seems to us that would itself undermine the fairness,
integrity and public reputation of the judicial proceedings, something
which we should try to avoid."

Joining Rawlinson were Chief Judge Mary Schroeder and Judges Michael
Daly Hawkins, Sidney Thomas, William Fletcher, Raymond Fisher and
Richard Clifton.

Judges Kim Wardlaw, Ronald Gould, Diarmuid O'Scannlain and Carlos Bea
concurred with parts of Rawlinson's ruling but also dissented, joining
each other in various combinations.

Wardlaw's dissent was the longest at 36 pages and lifted language from
the majority opinion to sarcastically accuse her colleagues of being
more concerned with speed than justice.

"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," Wardlaw wrote. "Although the burden-shifting approach the
majority arrives upon may be 'short,' 'easy' and 'quick,' it is
neither correct nor just."

Wardlaw, like Hubachek, also didn't like that the majority won't give
defendants an opportunity to be heard.

"The majority fails to explain how, without an evidentiary hearing and
briefing tantamount to resentencing by normal vacatur and remand
procedures, a district judge could ever accurately answer the question
as to whether he would have imposed a materially different sentence,"
she wrote.

The 9th is the last circuit to come up with a plan to handle pending
appeals in light of Booker, 125 S. Ct. 738 (2005). In that Jan. 12
decision, the U.S. Supreme Court ruled that the 20-year-old federal
sentencing guidelines were no longer mandatory and were now only advisory.

Since then, circuits have split on whether -- and how -- defendants
should be resentenced. With Wednesday's decision, the 9th Circuit has
aligned itself with the 2nd, 7th and D.C. circuits.

In the 7th and D.C. circuits, appellate courts have maintained
jurisdiction during the reconsideration process. The 9th, like the
2nd, is giving up jurisdiction to let district judges carry the ball.

Berman, the sentencing expert, said the 9th's plan was "procedurally
novel but eminently sensible." Still, he thinks it likely the U.S.
Supreme Court will take up the issue to resolve the circuit split.

But Rory Little, a Hastings College of the Law professor who once
headed the appellate section for the Northern District U.S. Attorney's
office, said he thinks the Supreme Court will leave it alone.

By the time the case would be decided, "all of these remands are
likely to be done," Little said.

The opinion is U.S. v. Ameline, 02-30326. 
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MAP posted-by: Richard Lake