United States v. Montgomery ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10587
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00010-ARM
BERT DOUGLAS MONTGOMERY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted
June 15, 2006—Honolulu, Hawaii
Filed August 29, 2006
Before: Betty B. Fletcher, Harry Pregerson, and
William C. Canby, Jr., Circuit Judges.
Opinion by Judge Pregerson
10429
UNITED STATES v. MONTGOMERY 10431
COUNSEL
G. Anthony Long, Esquire, Saipan, MP, for the defendant-
appellant.
Timothy E. Moran, Assistant United States Attorney, Saipan,
MP, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
On limited remand pursuant to United States v. Ameline,
409 F.3d 1073, 1085 (9th Cir. 2005) (en banc), the district
court did not “obtain the views of counsel” before it decided
not to re-sentence Appellant Bert Montgomery. Montgomery
argues that the district court, in not obtaining the views of
counsel, did not comply with the instructions laid down in
Ameline. We have jurisdiction under 28 U.S.C. § 1291. We
hold that our decision in Ameline requires the district court to
obtain the views of counsel before it decides whether Ameline
re-sentencing is warranted. Because the district court did not
do so, we remand Montgomery’s case for a second time.
I. Factual Background
Bert Montgomery was involved in a complex fraud scheme
that led to the temporary closing of the Bank of Saipan and
10432 UNITED STATES v. MONTGOMERY
millions of dollars of loss. Montgomery, along with his busi-
ness partner DuSean Berkich, endeavored to purchase a con-
trolling interest in the Bank of Saipan. To accomplish this,
they convinced Tomas Aldan, the CEO and Chairman of the
Board of the Bank of Saipan, to serve as their “inside man”
by promising him lucrative benefits and kickbacks. The three
then attempted, by various fraudulent means, to acquire Bank
of Saipan stock. Montgomery’s fraud resulted in a loss of
over five million dollars to the Bank of Saipan. As a result of
the fraud, the Bank of Saipan was temporarily closed and was
placed in receivership, a scandal that was highly publicized in
Saipan. As Montgomery acknowledges in his brief, the
actions of Montgomery and his co-conspirators are alleged to
have disrupted “banking and business operations in the Com-
monwealth . . . and the region in general.”
On June 20, 2003, a jury convicted Montgomery of: three
counts of wire fraud and conspiracy to commit wire fraud;
one count of deprivation of honest services; and four counts
of money laundering. The district court accepted the recom-
mendation of the presentence report (“PSR”) and assigned
Montgomery a Guidelines offense level of 38. The district
court rejected Montgomery’s objections to several of the
upward departures recommended by the PSR, and found that
Montgomery’s age and health did not provide a basis for a
downward departure. The Guidelines sentencing range was
235 to 293 months, and the district court settled on a 240-
month sentence, a sentence near the low end of the range.
Montgomery appealed to this court. In a memorandum dis-
position, a panel of this court affirmed Montgomery’s convic-
tion. See United States v. Montgomery, 143 Fed. Appx. 757,
759, 2005 WL 1793392, at *1 (9th Cir. July 27, 2005) (D.W.
Nelson, Kozinski, Bea). Because the district court had sen-
tenced Montgomery under the mandatory Guidelines scheme,
the panel found non-constitutional error and remanded under
Ameline, 409 F.3d at 1074. See Montgomery, 143 Fed. Appx.
at 760. The panel instructed the district court, on limited Ame-
UNITED STATES v. MONTGOMERY 10433
line remand, to determine “ ‘whether the sentence imposed
would have been materially different had the district court
known that the sentencing guidelines were advisory.’ ” Id.
(quoting Ameline, 409 F.3d at 1074).
On August 25, 2005, the district court received the certified
judgment of this court. On August 29, 2005 — only four days
later and without receiving any input from counsel — the dis-
trict court issued an order denying re-sentencing. The court
stated that it had “reviewed the court file, the presentence
report, and the sentence imposed upon defendant, and also
ha[d] an independent recollection of the salient facts of this
jury trial.” The court declined to alter Montgomery’s sentence
because:
Th[e] defendant’s primary role in the intentional
fraud perpetrated on the Bank of Saipan resulted in
direct injury to thousands of bank depositors, includ-
ing the Commonwealth government, all of whom
lost access to their savings. The indirect injury
caused to the families of individual account holders
and to the creditors of business account holders was
significant and still reverberates in the community as
the Bank has continued in receivership since May of
2002. The cold, calculating nature of the crime and
the financial losses and inconvenience caused to so
many victims warranted the sentence imposed.
Montgomery filed a timely appeal. He challenges three
issues regarding his sentence: (1) the failure of the court to
seek the views of counsel on whether re-sentencing was
appropriate; (2) the district court’s calculation of the Guide-
lines range; and (3) the ultimate “reasonableness” of his sen-
tence. We find reversible error on the first issue, and thus
remand.
II. Discussion
In our en banc decision in Ameline, we outlined the limited
remand procedure to be used where Booker error had not been
10434 UNITED STATES v. MONTGOMERY
preserved and where the district court sentenced a defendant
under the mandatory Guidelines scheme. Under Ameline, the
reviewing court, applying the plain error standard of review,
is to determine whether it was clear from the district court
record that the sentence would have been materially different
if the district court had known that the Guidelines were advi-
sory. See Ameline, 409 F.3d at 1084. If the record is not clear
on this point, then we are required to remand the case for the
district court to answer that question. See id.[1] We also laid out “the procedure to be followed” on
Ameline remand: we stated that, on this limited remand, “the
‘views of counsel, at least in writing,’ should be obtained.”
Ameline, 409 F.3d at 1085 (citing United States v. Crosby,
397 F.3d 103, 120 (2d Cir. 2005)). Many district courts in this
circuit have read the quoted statement as a requirement. See,
e.g., United States v. Wold, 2006 WL 1638638, at *1 (W.D.
Wash. June 2, 2006) (“In accord with the limited remand pro-
cedures adopted in Ameline, the parties have submitted sup-
plemental pleadings.”).1 We now explicitly restate what
Ameline requires: that, on Ameline remand, a district court
must obtain, or at least solicit, the views of counsel in writing
before deciding whether re-sentencing is appropriate.
There are several reasons why obtaining the views of coun-
sel was intended to be read as a requirement, not a suggestion.
1
Like much of Ameline’s procedure, this directive was adopted from the
Second Circuit’s procedure for Booker pipeline cases. District courts in
the Second Circuit have likewise solicited the counsels’ views prior to re-
sentencing. See, e.g., United States v. Perez, 2006 WL 482557, at *1 (2d
Cir. March 1, 2006) (unpublished) (holding that the district court, by
receiving letter briefs from both parties, had “fulfilled its responsibilities
under Crosby”); United States v. Salvagno, 375 F. Supp. 2d 117, 119-20
(N.D.N.Y. 2005) (ordering “in conformity with Crosby” that the parties
submit their views on re-sentencing); United States v. Jasper, 2005 WL
2414547, at *1 (S.D.N.Y. Sept. 29, 2005) (explaining that, “pursuant to
Crosby,” the court decided whether to re-sentence defendant after obtain-
ing counsels’ views).
UNITED STATES v. MONTGOMERY 10435
But we first dispose of the government’s argument that
“should” is a permissive term. The government is correct that
the term “should” often connotes a strong suggestion, not a
requirement. See Seltzer v. Chesley, 512 F.2d 1030, 1033 (9th
Cir. 1975) (construing “should” as a permissive, not a manda-
tory, word); see also Funk & Wagnall’s New Standard Dictio-
nary of the English Language 2263 (1937) (defining “should”
as “obligation in various degrees, usually milder than
‘ought’ ”). Courts, however, do not always interpret “should”
as permissive. See, e.g., United States v. Smith, 282 F.3d
1045, 1047-48 (8th Cir. 2002) (discussing circuit split over
whether “should” in a particular section of the Sentencing
Guidelines was mandatory or permissive); McDonnell Doug-
las Corp. v. Islamic Republic of Iran, 758 F.2d 341, 346 n.6
(8th Cir. 1985) (noting that “should” is inconclusive); Bord v.
Rubin, 1998 WL 420777, at *4 (S.D.N.Y. July 27, 1998)
(concluding, after lengthy review of cases interpreting
“should,” that “use of the word ‘should’ does not automati-
cally denote either a mandatory or a permissive direction.
Rather, the meaning depends on the context in which the
words are found.”).2
[2] Indeed, the Seventh Circuit has interpreted Crosby’s
statement that the district court “should” create a record
explaining its decision not to re-sentence as a mandatory
requirement. See United States v. Paladino, 401 F.3d 471, 484
(7th Cir. 2005) (“By ‘should’ in the quoted passage [of
Crosby] we understand ‘must.’ ”). In Crosby, the statement
that the district court “should” create a record immediately
follows the statement that the district court “should” obtain
the views of counsel. Thus, contrary to the government’s
argument, use of the word “should” is not unambiguous and
must be read in context. Read in context, Ameline requires, at
2
A court might be especially disposed to use “should” as gentler way
for one court to tell another court what it ought to do. Cf. United States
v. Anderson, 798 F.2d 919, 924 (7th Cir. 1986) (interpreting a judicial can-
non defining what a judge “should” do as a mandatory requirement).
10436 UNITED STATES v. MONTGOMERY
a minimum, that the district court obtain, or at least call for,
the views of counsel in writing before deciding whether re-
sentencing is necessary.
[3] First, in Ameline, we stated that the views of counsel “at
least in writing” should be obtained. 409 F.3d at 1085(emphasis added). This “at least” language is taken from
Crosby and refers to Crosby’s holding that the district court
(a) was not required to hold an in-court hearing, under Federal
Rule of Criminal Procedure 43(b), but (b) should “at least”
obtain the views of counsel. Reading the two statements from
Crosby together indicates that, while holding a hearing is
optional, obtaining written submissions is mandatory.
The rest of the opinion bears out this reading. In footnote
10, Ameline states that if the parties and the district court
agree that re-sentencing is necessary, the “need for submis-
sions by counsel” could be dispensed with. Ameline, 409 F.3d
at 1085 n.10 (emphasis added). This wording implies that, in
the absence of such an agreement, submissions by counsel are
necessary.
This interpretation also comports with the understanding of
the Ameline dissenters. See id. at 1093, 1095 n.5 (Wardlaw,
J., dissenting) (asserting that the “[b]riefs of counsel are not
a substitute for testimony, evidence, and argument”; noting
that, in the Second Circuit, courts were electing to use brief-
ing instead of hearings); id. at 1108 (Gould, J., dissenting)
(“Under the limited remand approach, a district court will
have to ‘obtain the views of counsel’ ”) (emphasis added); id.
at 1110 (Gould, J., dissenting) (arguing that the majority’s
plan of “[r]equiring the district court to obtain the views of
counsel in writing” was not sufficient under Booker).
Going beyond the text of Ameline, we believe it is clear that
allowing the parties to file written submissions is most consis-
tent with the procedure laid down in Ameline, and indeed, is
necessary for the district court to meaningfully comply with
UNITED STATES v. MONTGOMERY 10437
Ameline’s remand procedure. First, the parties are likely to
have useful input on this question. On Ameline remand, the
district court is asked to consider whether non-Guidelines fac-
tors might have justified a sentence different from the one
imposed if, at the time of sentencing, the court’s discretion
had not been constrained by the mandatory Guidelines.
Before Booker, certain circumstances would warrant depar-
ture only if they were present to a degree not adequately taken
into consideration under the Guidelines. See 18 U.S.C.
§ 3553(b)(1). Under the advisory Guidelines the district court
can, in every case, consider factors that were either discour-
aged or outright prohibited pre-Booker. See Ameline, 409 F.3d
at 1093 (Wardlaw, J., dissenting). Thus, there may be consid-
erations that were either not presented or not emphasized dur-
ing the original sentencing procedure that now, under
Ameline, provide a basis for re-sentencing. Unless these fac-
tors are called to the district court’s attention through written
submission, the district court cannot faithfully fulfill its man-
date under Ameline.
Second, such briefing would assure this court that the dis-
trict court had considered those factors that the parties deem
relevant and would assist this court in conducting its reason-
ableness review. The district court that decides not to re-
sentence on Ameline remand is required to explain its decision
not to re-sentence. See id. at 1085. But because the district
court is not required to enumerate each § 3553(a) factor in its
decision, see United States v. Knows His Gun, 438 F.3d 913,
918 (9th Cir. 2006), it would be difficult for this court to
determine whether the district court found certain facts irrele-
vant to whether re-sentencing was warranted, or whether it
simply overlooked facts that might now be relevant under
§ 3553(a). The arguments of counsel might help to train the
district court’s analysis on those facts — out of the wide uni-
verse of possibilities under § 3553(a) — that the parties deem
relevant. This, in turn, greatly facilitates this court’s review.
Indeed, without such a requirement, we are likely to
encounter a multiplicity of remands. As we explained, where
10438 UNITED STATES v. MONTGOMERY
counsel’s views are obtained, the district court is more likely
to address the § 3553(a) factors that the parties deem relevant,
and to explain why they were or were not persuasive. But if
counsel’s first opportunity to raise these factors is before this
court, it will be nearly impossible for us to determine whether
such factors would have affected the district court’s broad dis-
cretion to re-sentence, and we will have to remand the case
again for consideration of such factors.
[4] Requiring that district courts obtain the views of coun-
sel is a de minimis requirement that many district judges
appear to be doing already, if only to ease their own burden
of scouring the record for reasons that might be relevant to the
re-sentencing inquiry. We believe that treating Ame-
line’s statement that counsel’s views “should” be obtained as
a requirement best fits “the letter and the spirit” of Ameline.
See Vizcaino v. U.S. Dist. Court for the W. Dist. of Wash., 173
F.3d 713, 719 (9th Cir. 1999) (citations omitted). We there-
fore make explicit that Ameline requires that the views of
counsel, at least in writing, be obtained before the district
court decides whether re-sentencing is warranted.
[5] As the Ameline court recognized, we may remand “with
such instructions as the court considers appropriate.” Ameline,
409 F.3d at 1083 n.5 (citing Crosby, 397 F.3d at 117). Pursu-
ant to this authority, the Ameline court dedicated an entire
section of its opinion to the “process to be followed” on Ame-
line remand. Id. at 1084. The first time Montgomery’s case
was heard by our court, the panel remanded under Ameline
and incorporated Ameline’s instructions as part of the court’s
mandate. See Fed. Home Loan Bank v. Hall, 225 F.2d 349,
371 n.10 (9th Cir. 1955) (holding that “where an appellate
court in its mandate prescribes that the lower court should
‘proceed in accordance with the opinion,’ this pronouncement
operates to make the opinion a part of the mandate as com-
pletely as though the opinion had been set out at length” (cita-
tions omitted)).
UNITED STATES v. MONTGOMERY 10439
[6] A district court, on remand, has a duty to follow this
court’s instructions as to how the case is to proceed. See Viz-
caino, 173 F.3d at 719. The court “ ‘must implement both
“the letter and the spirit of the mandate, taking into account
the appellate court’s opinion and the circumstances it
embraces.” ’ ” Id. (citations omitted). Failure to follow this
court’s instructions on remand is grounds for the case to be
re-remanded for compliance with our instructions. See United
States v. Atondo-Santos, 385 F.3d 1199, 1200 (9th Cir. 2004)
(noting that case had been remanded multiple times for failure
to comply with this court’s mandate); see also Delgrosso v.
Spang & Co., 903 F.2d 234, 241 (3d Cir. 1990) (remanding
with clarified instruction where district court misunderstood
the appellate court’s original remand instructions). We there-
fore remand for compliance with Ameline.3
III. Conclusion
For the foregoing reasons, we REMAND to the district
court for compliance with the procedures set forth in Ameline.4
3
It has been suggested that the error in failing to obtain counsel’s views
on Ameline remand might be subject to harmless error review. Although
the en masse nature of the Ameline remand presents a unique situation, we
nonetheless believe that failure to comply with Ameline’s requirements is
best viewed as a failure to comply with the instructions on the scope of
remand. We have never held that the failure to follow instructions on
remand might be subject to inquiry into the harmlessness of that error, and
we refuse to do so here.
4
So that our own instructions are clear, neither this panel nor the previ-
ous one passed on the correctness of the district court’s calculation of the
Guidelines. When, inevitably, this case returns on “reasonableness”
review, it is still an open question whether the district court properly cal-
culated Montgomery’s sentence.