News from the Ameline en banc argument

Late yesterday, the Ninth Circuit heard argument en banc in Ameline, the case in which the circuit had previously established a broad plain error standard for Booker cases (detailed here).  I received a report from someone in attendance that the government suggested the Ninth Circuit adopt the Second Circuit’s Crosby “let’s ask the district court” plain error standard (explained here) [UPDATE:  The government made this suggestion as a fallback].  And apparently the en banc panel seemed warm to the suggestion.

I had previously been told that Ameline had pulled a relatively more liberal en banc panel, and this might explain why the government, for strategic reasons, was prepared to endorse the Crosby approach [UPDATE: as a fallback position], rather than strenuously urge the “defendant must prove” plain error standard adoped by the First, Fifth and Eleventh Circuits. 

I hope others who attended the Ameline en banc might use the comments to provide additional reports or information, since I have already received a few e-mails asking about what transpired.

IMPORTANT UPDATE/CORRECTION:  I have heard from a number of more reliable sources that the government urged that the Ninth Circuit take the plain error position of the 5th and 11th circuits, and that it is only the fall back position to follow the 2d and 7th circuit approach (and that Michael Dreeben arguing for the goverment explains at fairly great length why that approach is wrong).