Working through the process that is due
The Ninth Circuit’s latest work in Ameline (basics here) is notable for its plain error discussion, especially the closing statement that “it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime,” slip op. at 17 (emphasis in original), and also the failure to substantively engage with the Rodriguez from the Eleventh Circuit and the raging plain-error circuit court battles. But the Ameline court’s discussion of “basic procedural fairness” is even more remarkable, especially because the court drops a tantalizing footnote concerning burden of proof issues I have been discussing of late here and here and here.
In the course of discussing the factual dispute in Ameline over the amount of drugs in the offense, the Ninth Circuit speaks broadly about the need to “ensure fairness and integrity in the sentencing process,” and it observes that “[a]lthough the PSR is essential to the sentencing process, there is nothing sacrosanct about the information contained in the report.” The court in Ameline also clarifies that, even post-Booker, a defendant’s factual objection to the PSR means the sentencing court “may not simply rely on the factual statements in the PSR:”
This conclusion follows from the interplay between Federal Rule of Criminal Procedure 32(i)(3)(B) and the rule we adopted in Howard that the party seeking to adjust the offense level bears the burden of proof. This conclusion also properly accommodates the due process concern that a defendant be sentenced only on the basis of reliable information. When a defendant makes a timely specific objection to the factual accuracy of an assertion in the PSR, Rule 32(i)(3)(B), even after Booker, requires the district court to resolve the factual dispute.
But, when it comes to the potentially critical issue of what burden of proof may apply to disputed facts post-Booker, the Ameline court has this somewhat confusing punt in footnote 7:
In Howard, we also held that factual disputes under the Sentencing Guidelines should be decided by a preponderance of the evidence. See Howard, 894 F.2d at 1090. We further have held that, in certain circumstances, the applicable burden of proof at sentencing may be clear and convincing evidence, see United States v. Johansson, 249 F.3d 848, 853-54 (9th Cir. 2001), or even reasonable doubt. See United States v. Thomas, 355 F.3d 1191, 1202 (9th Cir. 2004). Whether the Booker majority remedial opinion affects the standard of proof articulated in these cases is an issue we need not address at this time.
Relatedly, while the Ameline court has us all thinking about “basic procedural fairness” and also about how best to “ensure fairness and integrity in the sentencing process,” I am happy to be able to share an important (and amusing) commentary I recently received from attorney Jim Felman. Entitled “The Need for Procedural Reform in Federal Criminal Cases” and available for download below, Jim uses a hypothetical conversation between a federal criminal defense attorney and a civil attorney to spotlight why he thinks the Federal Rules of Criminal Procedure applicable to sentencing proceedings “are in need of at least two specific reforms.”