The 9th Circuit uses Ameline to speak on plain error (and other issues)!

The Ninth Circuit has jumped into the plain error scrum (highlights here and here) through a new opinion in US v. Ameline, No. 02-30326 (9th Cir. Feb. 9, 2005) (available here).  Here are some highlights:

In light of the Supreme Court’s recent decision in United States v. Booker, 125 S. Ct. 738 (2005), we granted appellant Alfred Ameline’s petition for rehearing to reconsider our decision in United States v. Ameline, 376 F.3d 967 (9th Cir. 2004)….

Our original opinion was consistent with Booker’s holding that the Sixth Amendment as construed in Blakely applies to the Sentencing Guidelines. It was at odds, however, with the Court’s severability remedy that eliminated the mandatory nature of the Sentencing Guidelines. Applying Booker to the present case, we conclude that (1) the Court’s holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered; (2) because Ameline did not raise a Sixth Amendment argument at the time of sentencing we review for plain error; (3) Ameline’s sentence violated the Sixth Amendment and constituted plain error; and (4) the error seriously affected the fairness of Ameline’s proceedings. Accordingly, we vacate Ameline’s sentence and remand for resentencing.

In addition, the Ameline panel also decided to use this case as a vehicle to discuss some post-Booker procedural issues as well.

To provide guidance to the district court in resentencing Ameline, we also address Ameline’s challenge to the district court’s ruling that he bore the burden of disproving the amount of methamphetamine that the Presentence Report (“PSR”) attributed to him. In addressing this issue, we conclude that Booker did not relieve the district court of its obligation to determine the Sentencing Guidelines range for Ameline’s offense of conviction.  In determining the guideline range, the district court must still comply with the requirements of Federal Rule of Criminal Procedure 32 and the basic procedural rules that we have adopted to ensure fairness and integrity in the sentencing process.  Although the district court is not bound by the Sentencing Guidelines range, basic procedural fairness, including the need for reliable information, remains critically important in the post-Booker sentencing regime.