United States v. Combs ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30486
Plaintiff-Appellee, D.C. No.
v.  CR-02-00108-JKS/
ROBERT F. COMBS, AHB
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief District Judge, Presiding
Argued and Submitted
July 26, 2006—Anchorage, Alaska
Filed December 18, 2006
Before: Alex Kozinski, Marsha S. Berzon and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Berzon
19513
19516 UNITED STATES v. COMBS
COUNSEL
Lance C. Wells, Law Offices of Lance C. Wells, P.C.,
Anchorage, Alaska, for the defendant-appellant.
Deborah M. Smith, Acting United States Attorney for the Dis-
trict of Alaska, Anchorage, Alaska; Jo Ann Farrington, Assis-
tant United States Attorney, Anchorage, Alaska, for the
plaintiff-appellee.
OPINION
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 differ-
ent, 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 pos-
ture of his case illustrates the difficulties the courts of appeals
have faced in reviewing such sentences. Defendant was con-
victed on four counts relating to his involvement in a metham-
phetamine operation and sentenced to 168 months, a sentence
at the low end of the Guidelines range. He appealed on the
UNITED STATES v. COMBS 19517
sole ground that the district court erred in denying his motion
to suppress certain evidence. We affirmed in an opinion filed
the day before Booker was handed down. See United States
v. Combs, 394 F.3d 739 (9th Cir. 2005). Defendant petitioned
for rehearing, claiming Booker error because the district judge
had acted under the misapprehension that the Guidelines were
mandatory rather than advisory. Because defendant had not
raised a sentencing claim below, this belated claim could be
reviewed—if at all—only for plain error. We therefore
amended our opinion to include a remand to the district court
for a determination of whether the error was prejudicial, as
directed by Ameline. See United States v. Combs, 412 F.3d
1020 (9th Cir. 2005). At no time during his first appeal did
defendant challenge the reasonableness of his sentence. Our
ruling today applies only to defendants in Combs’s particular
situation.
On remand, the district court invited the parties to file
memoranda addressing whether resentencing was warranted.
Combs argued that the pre-Booker sentencing statute had pre-
cluded the district judge from ordering the sentence that
would best serve the policy goals of 18 U.S.C. § 3553(a), and
asked to be resentenced. After reviewing the parties’ submis-
sions, the judge concluded that “it does not appear that advi-
sory guidelines would have resulted in a materially different
sentence than Combs received under the mandatory guide-
lines.”
Defendant also first raised what we will call the “new
claims”—that the district court’s use of the preponderance
standard in finding facts that enhanced the Guidelines calcula-
tion violated his due process rights; and that the district
court’s reliance on hearsay evidence at sentencing violated his
Confrontation Clause rights. The district court questioned
whether the new claims were properly presented to it, but,
assuming they were, rejected both.
On appeal, defendant challenges the district court’s rulings
on the new claims as well as its determination that defen-
19518 UNITED STATES v. COMBS
dant’s sentence would have been the same under an advisory
Guidelines system.
Analysis
1. We first consider whether the district court erred in
refusing to resentence defendant after finding that the sen-
tence imposed during the original sentencing proceeding
would not have differed materially, had the judge known the
Guidelines were advisory. Defendant claims that the judge
failed to consider each of the section 3553(a) factors, in par-
ticular sections 3553(a)(1), which directs the district court to
consider the “history and characteristics of the defendant,”
and 3553(a)(2)(D), which outlines the goal of “provid[ing] the
defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most
effective manner.” Defendant argues that the district court
ignored these provisions by failing to take into account infor-
mation regarding his educational and vocational skills, mental
and emotional conditions, drug and alcohol dependence, and
lack of guidance as a youth.
[1] This argument requires us to consider an issue of first
impression: By what standard do we review a district court’s
determination, made during the course of an Ameline remand,
that it would have imposed the same sentence under an advi-
sory Guidelines system? The only guidance Ameline gives is
that, when the district judge determines that defendant’s sen-
tence would not have been materially different, “the original
sentence will stand, subject to appellate review for reason-
ableness.” 409 F.3d at 1074-75.
[2] We read the first part of this statement—that the sen-
tence “will stand”—as meaning that the district court’s deter-
mination of prejudice is effectively unreviewable. Insofar as
this inquiry relates to the district judge’s representation as to
his own state of mind, such absolute deference is inevitable.
However, Ameline goes on to say that, even where the district
UNITED STATES v. COMBS 19519
judge decides to stick with the original sentence on remand,
we review that sentence for “reasonableness.” Id. at 1074-75.
This suggests there is something for us to review even after
the judge has found that the sentence he imposed pre-Booker
would not differ materially from the sentence he would have
imposed under a post-Booker regime. We do not read this to
be the same as the reasonableness review we conduct on post-
Booker sentences. See, e.g., United States v. Mohamed, 459
F.3d 979, 984-85 (9th Cir. 2006). Such full-blown reasonable-
ness review presupposes that the judge sentenced defendant
under a post-Booker regime, where the judge must take into
account all the factors enumerated in 18 U.S.C. § 3553(a). A
limited Ameline remand—a term Ameline uses no fewer than
25 times—does not contemplate that the district judge will
engage in a full post-Booker resentencing, unless he first
determines that the sentence would have been materially dif-
ferent under an advisory Guidelines system. Where the dis-
trict judge determines that he would have imposed the same
sentence, defendant’s plain error claim will have failed for
lack of prejudice, and defendant would not seem entitled to
review of his sentence at all.
[3] Somewhat incongruously, however, Ameline allows for
appeal of the re-imposed sentence and instructs us to review
that sentence for “reasonableness.” And, indeed, there is an
issue we can consider that bears on the reasonableness of the
sentence: Whether the district judge properly understood the
full scope of his discretion in a post-Booker world. After all,
the district judge’s determination that he would have imposed
the same sentence after Booker is only meaningful if he
understood his powers and responsibilities under an advisory
Guidelines system. A more demanding inquiry would turn
every Ameline remand into a full-blown resentencing, and
would thus be contrary to Ameline’s central holding that
defendants whose sentences are being reviewed for plain error
are entitled only to a limited remand.
[4] The record here discloses that the judge understood his
post-Booker authority to impose a non-Guidelines sentence
19520 UNITED STATES v. COMBS
and that his ultimate determination was therefore not infected
by ignorance or a misapprehension of the law. As we
instructed in Ameline, the district judge gave the parties the
opportunity to present argument both as to the scope of his
post-Booker sentencing discretion and as to whether the facts
of defendant’s case warranted a sentence outside the Guide-
lines range. See Ameline, 409 F.3d at 1085; United States v.
Montgomery, 462 F.3d 1067, 1072 (9th Cir. 2006). The judge
then issued an order, reimposing the original sentence, which
concluded as follows: “[I]t does not appear that advisory
guidelines would have resulted in a materially different sen-
tence than Combs received under the mandatory guidelines.”
While the district court used the judicial passive voice, not the
active first person that the dissent would prefer, this is a mat-
ter of style, not substance. The district judge clearly indicated
that he would not have imposed a materially different sen-
tence under an advisory Guidelines system. His decision to
stick with the original sentence was therefore reasonable as
we understand Ameline to have used that term.
[5] 2. We now turn to whether the district court had
authority to consider defendant’s new claims. As already
noted, defendant appeared before the district court on a lim-
ited remand—a remand designed to answer a single question:
Whether the district judge would have given defendant a
materially different sentence under an advisory Guidelines
system. This limited remand gave the district judge no author-
ity to re-sentence defendant unless he first answered the ques-
tion posed to him in the affirmative. Once the judge answered
the question in the negative, his task was complete. The lim-
ited remand procedure left no room for the district judge to
consider new objections to the original sentence—objections
defendant could have raised the first time around, but failed
to do so. Because the district judge failed to modify his origi-
nal sentence in light of these new objections, he acted pre-
cisely as Ameline contemplated and we must affirm.
AFFIRMED.
UNITED STATES v. COMBS 19521
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 dis-
agree 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.” Fur-
thermore, because the district judge in this case failed even
that test — using language when reimposing Combs’s sen-
tence 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.1
I.
In Ameline, we held that in cases where “we are faced with
an unpreserved Booker error that may have affected a defen-
dant’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).
1
I concur in that portion of the majority opinion holding that, in a lim-
ited Ameline remand, the district judge is not “to consider . . . objections
defendant could have raised the first time around, but failed to do so.”
19522 UNITED STATES v. COMBS
There is no indication in Ameline that this subsequent rea-
sonableness review was intended to be anything less than the
reasonableness review generally afforded to post-Booker sen-
tences. See generally United States v. Cantrell, 433 F.3d
1269, 1279-80 (9th Cir. 2006). To the contrary. Ameline
repeatedly and specifically cites to United States v. Booker,
543 U.S. 220, 268 (2005), and its “reasonableness standard,”
in explicating what the appellate panel must do once a district
court reimposes a sentence, having held that it would not have
imposed a different sentence had it known the Guidelines
were advisory. See Ameline, 409 F.3d at 1079 (holding that
the reimposed sentence “will stand, provided it is reasonable,”
and citing to Booker, 543 U.S. at 268, for the proposition that
“both the Sixth Amendment ruling and the remedial interpre-
tation of the Reform Act, including the reasonableness stan-
dard, apply to all cases pending on direct review”); id. at 1085
(emphasis added) (explaining that, following remand, “the
defendant and the government have the right to appeal to this
court the district court’s decision, including a challenge to the
sentence based on the reasonableness standard established in
Booker,” and citing Booker, 543 U.S. at 261-62).
That this is the standard of review Ameline intended after
a limited remand is corroborated by the fact that the same
standard of review was adopted by other circuits whose opin-
ions we explicitly relied on when deciding Ameline. In outlin-
ing its version of the limited Ameline remand process, the
Seventh Circuit, for example, explained that if the district
judge reimposes his original sentence, “we will affirm the
original sentence against a plain-error challenge provided that
the sentence is reasonable, the standard of appellate review
prescribed by Booker.” United States v. Paladino, 401 F.3d
471, 484 (7th Cir.) (emphasis added) (citing Booker, 543 U.S.
at 261), cert. denied sub nom. Peyton v. United States, 126
S. Ct. 106 (2005). Significantly, the Seventh Circuit immedi-
ately added: “The proviso is important; the mere reimposition
of the original sentence does not insulate it from appellate
review under the new standard.” Id.; see also United States v.
UNITED STATES v. COMBS 19523
Crosby, 397 F.3d 103, 114-16 (2d Cir. 2005) (detailing the
extent of the “reasonableness” review to be done, even if the
sentencing error is only “available for review under plain
error analysis”), abrogation on other grounds recognized by
United States v. Lake, 419 F.3d 111, 113 n.2 (2d Cir. 2005).
To be sure, as the majority notes, there is one distinction
between Combs’s appeal and the one brought by Ameline.
Specifically, while Ameline did not initially challenge the
constitutionality of the Guidelines in the district court or in his
opening brief, he did challenge other aspects of his original
sentence on appeal. See Ameline, 409 F.3d at 1076; see also
Paladino, 401 F.3d at 479-81 (describing the sentencing
claims raised by defendants on appeal); Crosby, 397 F.3d at
119 (describing the sentencing claim Crosby raised on
appeal). Combs, on the other hand, did neither.2 Arguably,
then, he is not entitled to a windfall — in the guise of a full
reasonableness review of his sentence — because he never
questioned his sentence in the first instance. Ameline, how-
ever, never made this distinction, and it is, therefore, not one
that we can draw. Instead, under Ameline, defendants like
Combs are entitled to the same reasonableness review as
defendants who had from the outset challenged their sen-
tences on appeal.
I must therefore dissent.
II.
I also dissent from the majority’s conclusion that the dis-
trict judge in this case properly understood the full scope of
2
Combs’s original appeal challenged only his conviction. See United
States v. Combs, 394 F.3d 739 (9th Cir. 2005). One day after the Ninth
Circuit issued its original decision in Combs, the Supreme Court decided
Booker. This court subsequently granted Combs a limited remand, pursu-
ant to Ameline. See United States v. Combs, 412 F.3d 1020 (9th Cir. 2005)
(amending prior opinion).
19524 UNITED STATES v. COMBS
his post-Booker discretion. The language used by the district
court when reimposing Combs’s sentence leads to precisely
the opposite conclusion.
Again, I return to the language of Ameline. There, we held
that when an appellate panel is “faced with an unpreserved
Booker error that may have affected a defendant’s substantial
rights, and the record is insufficiently clear to conduct a com-
plete plain error analysis, a limited remand to the district court
is appropriate for the purpose of ascertaining whether the sen-
tence imposed would have been materially different had the
district court known that the sentencing guidelines were advi-
sory.” 409 F.3d at 1074 (emphasis added). This inquiry is
inherently subjective. It requires that the district judge ask
whether he would have imposed a different sentence at the
time of the original sentencing had he sentenced the defendant
under a post-Booker advisory Guidelines regime. See id. at
1083; id. at 1085 (noting that, on remand, “the district court
judge determines [whether] the sentence imposed would not
have differed materially had he been aware that the Guide-
lines were advisory” (emphasis added)); see also United
States v. Lence, 466 F.3d 721, 725 (9th Cir. 2006) (holding
that a criminal defendant who preserved his Sixth Amend-
ment error and is thus entitled to a full resentencing should be
resentenced by his original judge because “[a] defendant who
preserves a claim of error should receive no less of a chance
to benefit from [a] subjective assessment than a defendant
who fails to preserve a claim of error and obtains a limited
Ameline remand”).
The district judge who resentenced Combs failed to con-
duct the Ameline remand from this properly subjective van-
tage point. In reimposing Combs’s sentence, the judge did not
conclude that he would not have imposed a materially differ-
ent sentence had he known the sentencing guidelines were
advisory. Instead, he found that “[t]he distinction between
mandatory and advisory guidelines would not have necessi-
tated a materially different sentence in this case.” (Emphasis
UNITED STATES v. COMBS 19525
added.) The significance of this locution is not simply a mat-
ter of an inartful or careless choice of words, or the use of the
passive rather than active voice. Instead, like the language
quoted by the majority, the language quoted above indicates
that the district judge approached his post-Booker sentencing
task from as mechanical a perspective as he did pre-Booker,
oblivious to the contradiction inherent in his conclusion that
an advisory system did not necessitate any particular result at
all. In short, unlike the majority, I read the district judge’s
words, taken as a whole, as indicating that he did not under-
stand “the full scope of his discretion in a post-Booker
world.”
For all of the above reasons, I dissent.