The Ninth Circuit Court of Appeals today released an opinion in USA v. COMBS, No. 05-30486, a criminal appeal. The panel consisted of Alex Kozinski, Marsha S. Berzon and Richard C. Tallman, Circuit Judges.
KOZINSKI, Circuit Judge:
We consider two questions left unanswered by United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005): (1) By what standard do we review a district court’s determination that a defendant’s sentence would not have been materially different, had it known that the Guidelines were advisory rather than mandatory? And, (2) may a defendant raise new claims of error during the course of an Ameline remand? Facts Defendant was sentenced during the interregnum between Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), and the tortured posture of his case illustrates the difficulties the courts of appeals have faced in reviewing such sentences. Defendant was convicted on four counts relating to his involvement in a methamphetamine operation and sentenced to 168 months, a sentence at the low end of the Guidelines range. He appealed on the . . .
BERZON, Circuit Judge, dissenting in part:
I respectfully dissent. The majority’s peculiar interpretation of the word “reasonableness” not only defies its common usage in the English language, but more importantly, runs contrary to what this court decided, sitting en banc, in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Because our intention in Ameline was to give all defendants, even those like Combs, the same reasonableness review we conduct on post-Booker sentences — an intention borne out by the language used repeatedly in Ameline itself — I disagree with the majority’s conclusion that Combs is entitled only to the most anemic of appellate reviews: an inquiry solely into “[w]hether the district judge properly understood the full scope of his discretion in a post-Booker world.” Furthermore, because the district judge in this case failed even that test — using language when reimposing Combs’s sentence that indicates that he failed to appreciate the nature of his post-Booker sentencing authority — I would vacate Combs’s sentence and remand to the district court so that it may properly comply with procedures set forth in Ameline. I. In Ameline, we held that in cases where “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 panel should remand the matter to the district court for a limited purpose: to “ascertain[ ] whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at 1074. If, during the course of that remand, “the district court responds in the negative, the original sentence will stand, subject to appellate review for reasonableness.” Id. at 1074-75 (emphasis added).. . .