United States v. Ameline ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 02-30326
Plaintiff-Appellee, D.C. No.
v.  CR-02-00011-SEH
ALFRED ARNOLD AMELINE, ORDER AND
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted November 4, 2003*
Opinion Filed July 21, 2004
Rehearing Granted February 9, 2005
Opinion on Rehearing Filed February 9, 2005
Seattle, Washington
Filed February 9, 2005
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Richard A. Paez
*The Panel unanimously finds this case suitable for decision without
oral argument.
1867
UNITED STATES v. AMELINE 1871
COUNSEL
Brian P. Fay, Angel, Coil & Bartlett, Bozeman, Montana, for
the appellant.
William W. Mercer, United States Attorney, and Lori Harper
Suek, Assistant United States Attorney, Great Falls, Montana;
Michael A. Rotker, Attorney, United States Department of
Justice, Washington, D.C., for the appellee.
ORDER
Appellant Alfred Ameline’s Petition for Rehearing is
granted. The opinion filed on July 21, 2004, United States v.
Ameline, 376 F.3d 967 (9th Cir. 2004), is withdrawn. A new
opinion is filed simultaneously with this order.
OPINION
PAEZ, Circuit Judge:
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). In our original opinion, we held that, because Ame-
line’s sentence under the United States Sentencing Guidelines
was based on facts found by the district judge by a preponder-
ance of the evidence, his sentence violated the Sixth Amend-
ment as construed by the Supreme Court in Blakely v.
Washington, 124 S. Ct. 2531 (2004). We vacated Ameline’s
sentence and remanded for resentencing with directions that,
if necessary, a jury determine the amount of drugs attributable
to Ameline and whether he possessed a weapon in connection
with his conviction, two factors that could enhance his sen-
tence under the Sentencing Guidelines.
1872 UNITED STATES v. AMELINE
After our decision issued and while Ameline’s petition for
rehearing was pending, the Supreme Court granted certiorari
in United States v. Booker, 375 F.3d 508 (7th Cir.), cert.
granted, 125 S. Ct. 11 (2004), and Fanfan v. United States,
2004 WL 1723114 (D. Me. June 28, 2004), cert. granted
before judgment, 125 S. Ct. 12 (2004), to consider whether,
after Blakely, application of the federal Sentencing Guidelines
violates a defendant’s Sixth Amendment rights. In Booker, the
Court held that “the Sixth Amendment as construed in Blakely
does apply to the Sentencing Guidelines.” Booker, 125 S. Ct.
at 745. To remedy the Sixth Amendment violation, the Court
severed two provisions from the Sentencing Reform Act of
1984, 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998, one
which made the Sentencing Guidelines mandatory and one
that depended on the mandatory nature of the Guidelines.
With the excision of these two provisions, the Court held that
the Sentencing Guidelines are now “effectively advisory.”
Booker, 125 S. Ct. at 757.
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.
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
UNITED STATES v. AMELINE 1873
(“PSR”) attributed to him. In addressing this issue, we con-
clude that Booker did not relieve the district court of its obli-
gation 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 require-
ments 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 proce-
dural fairness, including the need for reliable information,
remains critically important in the post-Booker sentencing
regime.
I.
Ameline pled guilty to knowingly conspiring to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
846. His plea agreement did not specify the quantity of
methamphetamine for purposes of sentencing, but rather left
that determination to the district court at the time of sentenc-
ing. At Ameline’s change of plea hearing, he disputed the
government’s offer of proof that he distributed one and a half
kilograms of methamphetamine, but admitted that “some
methamphetamine” was involved in his offense conduct. At
the end of the hearing, Ameline’s counsel informed the court
that he expected to present witnesses who would dispute the
amount of methamphetamine that the government attributed
to Ameline.
The PSR prepared by the Probation Office attributed
1,079.3 grams of methamphetamine to Ameline for purposes
of applying the drug equivalency table found in the United
States Sentencing Guidelines Manual (“U.S.S.G.”)
§ 2D1.1(c), resulting in a recommended base offense level of
32. The PSR also recommended a two-level enhancement
pursuant to § 2D1.1(b)(1) for possession of a weapon in con-
nection with the offense. This enhancement was based on
hearsay testimony by a confidential informant that Ameline
1874 UNITED STATES v. AMELINE
sold to him methamphetamine in exchange for a rifle, and that
he once witnessed Ameline threaten his son with a handgun.
After the probation officer disclosed the draft PSR to Ame-
line and the government, Ameline, as required by the court’s
April 30, 2002 Sentencing Order, presented the probation
officer with a series of objections to the quantity of metham-
phetamine attributed to him in the report. Ameline also
objected to the two paragraphs that formed the basis of the
two-level weapon enhancement as “false.” In his letter object-
ing to the draft PSR, Ameline explained the basis for his
objections and the evidence on which he would rely at the
sentencing hearing. The probation officer dismissed Ame-
line’s objections and reaffirmed his determination of the
quantity of methamphetamine in the original PSR, as well as
the upward enhancement. In Ameline’s pre-hearing Sentenc-
ing Memorandum, he objected to the amount of methamphet-
amine attributed to him in the PSR. Ameline’s memorandum
detailed the evidence that he intended to rely upon to dispute
the drug quantity determined in the PSR.
At the beginning of the sentencing hearing, before any wit-
nesses testified, the district judge informed the parties how he
intended to proceed:
It is the position of this court in this matter, as it is
in all such cases, that the facts as recited in the pre-
sentence report are prima facie evidence of the facts
set out there; that if the defendant challenges the
facts set forth in the presentence report, it is the bur-
den of the defendant to show that the facts contained
in the report are either untruthful, inaccurate, or oth-
erwise unreliable.
The district judge then instructed defense counsel to call his
first witness.1
1
Before counsel called any witnesses, the court again reiterated its posi-
tion:
UNITED STATES v. AMELINE 1875
Consistent with his objections, Ameline presented testi-
mony from “Toro,” aka Shawn Rodriguez, Reuben McDow-
ell, Michael Lamere, and a confidential informant, Dan
Metcalf, to dispute the amount of methamphetamine attri-
buted to him in the PSR. At the conclusion of the sentencing
hearing, the district court found that 1,603.602 grams of
methamphetamine were attributable to Ameline, for a base
offense level of 34. The district court stated, “I should let all
parties know that all findings are based upon a preponderance
of the evidence standard and are established at least to that
standard in the view of the court.” The district court found the
§ 2D1.1(b)(1) weapon enhancement “undisputed,” raising the
offense level to 36, but deducted three points for timely
acceptance of responsibility. The resulting total offense level
was 33. The district court sentenced Ameline to 150 months,
in the middle of the 135 to 168 month range established by
the Sentencing Guidelines.
II.
A.
On appeal, Ameline initially challenged the district court’s
determination that he bore the burden of disproving the fac-
[I]t is my position that the statements in the presentence report,
that is, statements of fact, are reliable on their face and prima
facie evidence of the facts there stated. And I will be taking those
into account to the extent relevant to the obligations that I have
in fashioning sentence and fixing responsibility for drug quanti-
ties, if they are not overcome by other evidence presented at this
hearing. Be guided accordingly.
(emphasis added).
2
This amount was greater than that recommended by the PSR. The PSR
described two additional transactions, but the probation officer did not
include those transactions in calculating the overall drug amount. The dis-
trict court, however, included the amounts from those two additional trans-
actions, thus establishing an even higher base offense level.
1876 UNITED STATES v. AMELINE
tual statements in the PSR relating to drug quantity. He also
challenged the court’s determination that the hearsay evidence
used to prove drug quantity was sufficiently reliable. Ameline
did not raise a Sixth Amendment challenge to his sentence.
When we submitted Ameline’s appeal for decision on
November 4, 2003, he had contested neither the preponder-
ance of the evidence standard used by the district judge nor
the propriety of the judge as factfinder.
Nonetheless, in our original opinion, we noted that the
Supreme Court’s recent decision in Blakely raised the possi-
bility that Ameline’s initial challenges had been subsumed by
a violation of his Sixth Amendment rights. Based on the
Supreme Court’s ruling in Blakely that “the ‘statutory maxi-
mum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant,” Blakely, 124
S. Ct. at 2537, we concluded that Blakely worked “a sea
change in the body of sentencing law.” Ameline, 376 F.3d at
973. In light of the potential impact of Blakely on the Sentenc-
ing Guidelines, we also concluded that we would be remiss if
we did not, sua sponte, examine if and how Blakely applied
to sentences under the Sentencing Guidelines. See DeGurules
v. INS, 833 F.2d 861, 863 (9th Cir. 1987) (“[A] fundamental
principle of our jurisprudence is that a court will apply the
law as it exists when rendering its decision. . . . [T]his princi-
ple applies even when a change to existing law occurs during
the pendency of an appeal.” (emphasis added)).3
3
Our precedent provides ample support for our authority to consider sua
sponte a claim that was not initially raised on appeal. We previously have
“examine[d] sua sponte the application of [a] recent Supreme Court opin-
ion” to a defendant’s conviction. United States v. Garcia, 77 F.3d 274,
276 (9th Cir. 1996); see also Parks Sch. of Bus., Inc. v. Symington, 51 F.3d
1480, 1488 (9th Cir. 1995) (holding that “[w]e will review an issue that
has been raised for the first time on appeal under certain narrow circum-
stances,” including “when a change in law raises a new issue while an
appeal is pending”); In re Skywalkers, Inc., 49 F.3d 546, 548 n.4 (9th Cir.
1995) (recognizing that a “change in law pending appeal permits entertain-
ment of [an] issue not theretofore raised”).
UNITED STATES v. AMELINE 1877
Because Ameline’s initial challenges to his sentence
assumed a federal sentencing scheme in which the district
judge, not the jury, determined the material facts that could
increase the severity of punishment using a preponderance of
the evidence standard and because Blakely undermined the
constitutional validity of sentences imposed under this gener-
ally mandatory sentencing scheme, we proceeded to address
whether Blakely applied to the Sentencing Guidelines. Thus,
that Ameline did not initially challenge the applicable stan-
dard of proof or the judge’s factfinding authority at his sen-
tencing hearing did not bar our sua sponte consideration of
whether Blakely’s rules applied to the Sentencing Guidelines.
We held, however, that, because Ameline did not interpose
his Sixth Amendment objection to his sentence in the district
court, we would review for plain error.
[1] Our determination that Blakely applied to cases pending
on direct appeal was ultimately consistent with the remedial
scheme set forth in Justice Breyer’s opinion for the Court in
Booker. See Booker, 125 S. Ct. at 769. In Booker, the Court
held that “we must apply today’s holdings—both the Sixth
Amendment holding and our remedial interpretation of the
Sentencing Act—to all cases on direct review.” Id. In so hold-
ing, the Court recognized that not all cases would warrant a
new sentencing hearing because any error might be harmless,
or resentencing might not be warranted under a plain error
standard of review. See id. We again conclude that, although
Ameline did not raise a Sixth Amendment challenge to his
sentence in the district court or in his initial brief on appeal,
we may properly consider his post-Blakely/Booker Sixth
Amendment challenge to his sentence.
B.
[2] In Booker, the Court reaffirmed its recent holding in
Blakely “ ‘that the “statutory maximum” for Apprendi pur-
poses is the maximum sentence a judge may impose solely on
the basis of facts reflected in the jury verdict or admitted by
1878 UNITED STATES v. AMELINE
the defendant.’ ” Id. at 749 (quoting Blakely, 124 S. Ct. at
2537). Emphasizing the mandatory nature of the Sentencing
Guidelines, the Court determined that there was “no distinc-
tion of constitutional significance between the Federal Sen-
tencing Guidelines and the Washington [sentencing]
procedures at issue in [Blakely].” Id. As the Court explained,
“[t]he [Sentencing] Guidelines as written . . . are not advisory;
they are mandatory and binding on all judges.” Id. at 750.
Thus, the Court held that the Sixth Amendment as construed
by Apprendi and Blakely applied to the Sentencing Guide-
lines.
The manner in which the district court arrived at Booker’s
sentence highlighted the constitutional deficiencies in the
Sentencing Guidelines. Booker was convicted of possessing
with intent to distribute at least 50 grams of cocaine base
(crack), a violation of 21 U.S.C. § 841(a). Id. at 745.
Although the jury convicted Booker based upon evidence that
he had 92.5 grams in his duffel bag, the district judge held a
post-trial sentencing hearing and found by a preponderance of
the evidence that Booker had possessed an additional 566
grams of crack cocaine and further found that Booker had
obstructed justice. On the basis of these additional facts, the
Sentencing Guidelines required the district judge to impose a
sentence between 360 months and life imprisonment. As a
result, Booker received a sentence of 30 years, rather than the
sentence of 21 years and 10 months that he would have
received based on the facts found by the jury. Id. Booker’s
sentence—360 months—was not authorized by the jury’s ver-
dict and was therefore improper under the Sixth Amendment.
[3] Here, Ameline’s sentence under the Sentencing Guide-
lines exceeded “the maximum authorized by the facts estab-
lished by a plea of guilty or a jury verdict.” Id. at 756.
Ameline admitted to only a detectable amount of methamphet-
amine.4 Under 21 U.S.C. § 841(b)(1)(C), Ameline faced a
4
We previously have held that “even where due process requires that a
drug quantity allegation be pleaded in the indictment and proved to a jury
UNITED STATES v. AMELINE 1879
potential sentence of 0 to 20 years. However, the maximum
sentence under the Sentencing Guidelines that the district
judge could have imposed on the basis of Ameline’s
admission—without any additional factual findings—would
have been sixteen months, given a total base offense level of
12.5 See U.S.S.G. § 2D1.1(c)(14) (base offense level of 12
applies when the offense involved “[l]ess than 2.5 G of
Methamphetamine, or less than 250 MG of Methamphetamine
(actual)”). Instead, the district court imposed a sentence of
150 months, based on a base offense level of 34, a two-level
upward enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm—based on judicial fact-finding—and
a three-point reduction for acceptance of responsibility (for a
final offense level of 33). This sentence far exceeded the max-
imum sentence that the district judge could have imposed
under the Guidelines on the basis of facts admitted by Ame-
line. Thus, as in Booker, Ameline’s sentence violated his
Sixth Amendment rights as construed by Apprendi and
Blakely.
III.
Because Ameline did not object to his sentence on the
ground that the Sentencing Guidelines or the procedures used
to determine the material sentencing facts were unconstitu-
beyond a reasonable doubt, a defendant can plead guilty to the elements
of the offense without admitting the drug quantity allegation.” United
States v. Thomas, 355 F.3d 1191, 1198 (9th Cir. 2004). Here, neither the
Superseding Information nor the Indictment charged a specific drug quan-
tity. Nonetheless, at the change of plea hearing the government proffered
that Ameline agreed to distribute between one and one and a half kilo-
grams of methamphetamine. Ameline vigorously disputed this character-
ization and admitted to only a detectable amount of methamphetamine at
the plea colloquy. In these circumstances, Ameline’s guilty plea did not
constitute an admission of the amount proffered by the government.
5
With one prior conviction in 1997 for “Issuing a Bad Check,” Ameline
was in criminal history Category I.
1880 UNITED STATES v. AMELINE
tional under Apprendi, or on the ground that the material sen-
tencing facts were not alleged in the indictment, submitted to
the jury, or proved beyond a reasonable doubt, we review for
plain error. See United States v. Cotton, 535 U.S. 625, 628-29
(2002); cf. Booker, 125 S. Ct. at 769.
[B]efore an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is
plain, and (3) that affect[s] substantial rights. If all
three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceed-
ings.
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (cita-
tions and quotation marks omitted); see also United States v.
Recio, 371 F.3d 1093, 1100 (9th Cir. 2004).
A.
“Deviation from a legal rule is ‘error’ unless the rule has
been waived.” United States v. Olano, 507 U.S. 725, 732-33
(1993). As discussed, Ameline’s Sixth Amendment rights as
construed in Blakely and Booker were violated. This consti-
tuted error.
B.
[4] In determining whether the error was plain, the Court
has explained that it is sufficient that the error is clear under
the law as it exists at the time of appeal. See Johnson, 520
U.S. at 468 (“[W]here the law at the time of trial was settled
and clearly contrary to the law at the time of appeal[,] it is
enough that an error be ‘plain’ at the time of appellate consid-
eration.”). It is clear after Blakely and Booker that, given the
mandatory nature of the Guidelines, increasing Ameline’s
punishment based on facts not admitted by him or determined
UNITED STATES v. AMELINE 1881
by a jury beyond a reasonable doubt was contrary to his Sixth
Amendment rights.
C.
[5] For an error to affect “substantial rights,” “the error
must have been prejudicial: It must have affected the outcome
of the district court proceedings.” Olano, 507 U.S. at 734.
There can be little doubt that the constitutional error in sen-
tencing Ameline affected Ameline’s substantial rights. Ame-
line was deprived of his right to have a jury find beyond a
reasonable doubt the quantity of drugs attributable to him.
Here, as noted above, and as in Booker, the district court’s
sentence far exceeded the maximum sentence under the
Guidelines that was supported by Ameline’s admission that
his offense involved only a “detectable quantity” of metham-
phetamine. Without additional factual findings by the court,
Ameline faced a maximum sentence of sixteen months.
Instead, he received a sentence of 150 months. Under these
circumstances, we have no doubt that the constitutional error
affected Ameline’s substantial rights.
D.
Finally, the error affected the fairness of Ameline’s pro-
ceedings. In discussing the fairness of the result in Blakely,
the Court stated:
Any evaluation of Apprendi’s “fairness” to criminal
defendants must compare it with the regime it
replaced, in which a defendant, with no warning in
either his indictment or plea, would routinely see his
maximum potential sentence balloon from as little as
five years to as much as life imprisonment, see 21
U.S.C. §§ 841(b)(1)(A), (D), based not on facts
proved to his peers beyond a reasonable doubt, but
on facts extracted after trial from a report compiled
1882 UNITED STATES v. AMELINE
by a probation officer who the judge thinks more
likely got it right than got it wrong.
Blakely, 124 S. Ct. at 2542.
This is precisely what happened to Ameline. Although
Ameline admitted to only a detectable amount of metham-
phetamine, and vigorously challenged the reliability of the
hearsay evidence presented in the PSR to increase his base
offense level, the district court, constrained by the Guidelines,
imposed a sentence that violated Ameline’s Sixth Amendment
rights. As the Fourth Circuit recently held, “to leave standing
this sentence imposed under the mandatory guideline regime,
we have no doubt, is to place in jeopardy the fairness, integ-
rity or public reputation of judicial proceedings.” United
States v. Hughes, ___ F.3d ___, 2005 WL 147059, at *5 (4th
Cir. Jan. 24, 2005) (quotation marks omitted).
[6] Thus, we hold that the district court’s imposition of a
150-month sentence under the Sentencing Guidelines in viola-
tion of Ameline’s Sixth Amendment rights as construed by
Blakely and Booker was plain error. We further hold that
remand is necessary because letting Ameline’s sentence stand
“simply because it may happen to fall within the range of rea-
sonableness unquestionably impugns the fairness, integrity, or
public reputation of judicial proceedings.” Id. at *5 n.8.
“Moreover, declining to notice the error on the basis that the
sentence actually imposed is reasonable would be tantamount
to performing the sentencing function ourselves.” Id. Accord-
ingly, it is the truly exceptional case that will not require
remand for resentencing under the new advisory guideline
regime. This is not such a case. The violation of Ameline’s
Sixth Amendment rights therefore warrants vacating his sen-
tence and remanding for resentencing.
E.
Upon remand, the district court must resentence Ameline in
accordance with the Court’s remedial holding in Booker. In
UNITED STATES v. AMELINE 1883
the majority remedial opinion by Justice Breyer, the Court
considered, “as a matter of severability analysis,” whether the
Guidelines as a whole were no longer applicable “such that
the sentencing court must exercise its discretion to sentence
the defendant within the maximum and minimum set by stat-
ute.” Booker, 125 S. Ct. at 756. The Court, however, ulti-
mately determined that it could address the Sixth Amendment
violation by severing 18 U.S.C. § 3553(b)(1), the provision of
the Sentencing Reform Act “that makes the Guidelines man-
datory,” and severing one other provision, 18 U.S.C.
§ 3742(e), “which depends upon the Guidelines’ mandatory
nature.” Id. at 756-57. With these modifications the Court
determined that the Sentencing Reform Act “makes the
Guidelines effectively advisory,” id. at 757, but leaves the
remainder of the Act intact to “function[ ] independently.” Id.
at 764. Under the Act as modified, “district courts, while not
bound to apply the Guidelines, must consult those Guidelines
and take them into account when sentencing.” Id. at 767.
Thus, under the post-Booker discretionary sentencing
regime, the advisory guideline range is only one of many fac-
tors that a sentencing judge must consider in determining an
appropriate individualized sentence. For instance, the Sen-
tencing Guidelines’ limitations on the factors a court may
consider in sentencing—e.g., the impermissible grounds for
departure set forth in § 5K2.0(d)—no longer constrain the
court’s discretion in fashioning a sentence within the statutory
range.
Sentencing discretion is not boundless, however; it must be
tethered to the congressional goals of sentencing as reflected
in the Sentencing Reform Act. See 18 U.S.C. § 3553(a). To
this end, “[t]he court shall impose a sentence sufficient, but
not greater than necessary, to comply with the purposes [of
the Act] set forth in [18 U.S.C. § 3553(a)(2)].” Id. Accord-
ingly, in addition to the advisory guideline range, a sentencing
court must consider “the nature and circumstances of the
offense and the history and characteristics of the defendant”
1884 UNITED STATES v. AMELINE
as well as the need for the sentence to reflect the seriousness
of the offense, promote respect for the law, provide just pun-
ishment, afford adequate deterrence, protect the public, and
provide the defendant with needed training and medical care.
18 U.S.C. § 3553(a)(1)-(2). In addition, the court must con-
sider the relevant Sentencing Commission policy statements
and the need to avoid unwarranted sentencing disparities and
to provide restitution to victims. 18 U.S.C. § 3553(a)(5)-(7).
[7] In sum, in exercising discretion, district judges must
consider, along with the advisory guideline range, the goals
and purposes of sentencing as reflected in § 3553(a) and fash-
ion an appropriate sentence that furthers these objectives. To
facilitate meaningful appellate review, the court must also
provide a reasoned explanation for its sentencing decision.
See 18 U.S.C. § 3553(c).
IV.
To provide guidance to the district court upon resentencing,
and because the court must determine the advisory guideline
sentencing range for Ameline’s offense of conviction before
imposing a sentence, we address one of Ameline’s challenges
to his initial sentence that is likely to arise on remand.6 As
noted, Ameline initially challenged his sentence on the
ground that the district court incorrectly placed the burden on
him of disproving the drug quantity determinations in the
PSR. As we explain, the procedure employed by the district
court was inconsistent with the basic sentencing procedures
that we have held applicable to sentencing determinations
under the Sentencing Guidelines and Federal Rule of Criminal
Procedure 32. These baseline rules, which ensure fairness and
integrity in the sentencing process, remain in force in the
post-Booker sentencing regime.
6
Ameline also argued that the district court’s drug quantity finding was
clearly erroneous because it was based on multiple layers of unreliable
hearsay evidence. Because the district court must resentence Ameline con-
sistent with Booker, we do not address this issue.
UNITED STATES v. AMELINE 1885
We previously held in United States v. Howard that the
government “bear[s] the burden of proof for any fact that the
sentencing court would find necessary to determine the base
offense level.” 894 F.2d 1085, 1090 (9th Cir. 1990); see also
United States v. Charlesworth, 217 F.3d 1155, 1158 (9th Cir.
2000).7 In so holding, we explained: “Since the government
is initially invoking the court’s power to incarcerate a person,
it should bear the burden of proving the facts necessary to
establish the base offense level.” Howard, 894 F.2d at 1090.
We also held that “the government should bear the burden of
proof when it seeks to raise the offense level and that the
defendant should bear the burden of proof when the defendant
seeks to lower the offense level.” Id. By treating the factual
statements in the PSR as presumptively accurate, and placing
the burden on Ameline to disprove them, the district court
relieved the government of its sentencing burden and required
Ameline to establish the factual basis for a lower base offense
level than the one recommended in the PSR. This was error.
[8] Although the PSR is essential to the sentencing process,
there is nothing sacrosanct about the information contained in
the report. Because Ameline raised specific timely objections
to the methamphetamine quantity determination in the PSR,
it is the government’s burden to produce reliable evidence to
establish the factual predicate for the court’s base offense
level determination. It may not simply rely on the factual
statements in the PSR.
7
In Howard, we also held that factual disputes under the Sentencing
Guidelines should be decided by a preponderance of the evidence. 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 evi-
dence, 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.
1886 UNITED STATES v. AMELINE
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. See
United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993);
see also United States v. Navarro, 979 F.2d 786, 788 (9th Cir.
1992) (“To sentence Navarro on the basis of all the drugs
sold, the court had to find that the government had met this
burden with regard to each transaction.”). 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.
Although the district court allowed Ameline to call wit-
nesses to dispute the factual statements in the PSR and made
relevant factual findings, by treating the factual statements in
the PSR as presumptively accurate, the court erroneously
placed the ultimate burden of proof on Ameline. Under the
district court’s procedure, Ameline was required to prove a
negative and to bear the risk of his failure of proof. Although
the final Sentencing Guidelines range is nonbinding under
Booker, there are serious sentencing ramifications to the dis-
trict court’s factual findings. The district court’s drug quantity
determination will directly affect the base offense level, the
starting point for determining the applicable guideline range
for an offense under 21 U.S.C. § 841(a)(1). See U.S.S.G.
§ 2D1.1(c).
In light of the fact that Ameline presented numerous wit-
nesses who disputed the PSR’s base offense level of 32, all of
whom raised serious questions regarding the total quantity of
drugs attributable to Ameline, the district court must resolve
any material factual dispute consistent with the basic proce-
dures outlined above before it exercises its sentencing discre-
tion and imposes a sentence in conformity with Booker.
UNITED STATES v. AMELINE 1887
V.
In conclusion, we hold that Ameline’s sentence imposed
under the mandatory Sentencing Guidelines violated his Sixth
Amendment rights as construed by Blakely and Booker and
this violation constituted plain error. Accordingly, we remand
for resentencing in light of Booker and consistent with the
views expressed in this opinion.
VACATED and REMANDED.
No petition for rehearing will be entertained and the man-
date shall issue forthwith.