United States v. Alfred Arnold Ameline

*1111 BEA, Circuit Judge,

concurring in part and dissenting in part.

I agree that Ameline’s sentence must be vacated and remanded due to the district court’s error under United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). I therefore concur in Parts I, II and V of th'e majority opinion. I also concur in the concurring and dissenting opinions of Judges O’Scannlain, Wardlaw (Part I), and Gould to the extent 'they conclude it is the responsibility of this court, not the district court, to determine whether “the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74 , 124 S.Ct. 2333, 2340 , 159 L.Ed.2d 157 (2004).

I disagree with all of my colleagues, however, as to how this court should conduct its review in cases in which there is forfeited Booker error, but the record as to sentencing is not sufficiently developed to discern whether the error prejudiced the defendant. I therefore dissent from Parts III, IV and VI of the majority opinion, and the dissenting opinions that would restrict appellate court review of the effect of such Booker error to the record before the sentencing court.

Two considerations drive my analysis of how forfeited Booker error must be addressed. First, we must not abdicate our responsibility as the reviewing court to determine whether plain error has occurred. Second, the defendant should be given a proper opportunity to present evidence on the third element of the plain-error doctrine-to establish “that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” Dominguez Benitez, 124 S.Ct. at 2340 (citations and internal quotation marks omitted); see also United States v. Olano, 507 U.S. 725, 731-32 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993).

I. This Court — Not the District Court — Must Determine Prejudice

In Booker, the Supreme Court specifically stated that it expects the appellate courts to apply the plain-error doctrine to cases raising a Booker issue on appeal where no objection was made below:

[ W]e must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review. ... That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example,- whether the issue was raised below and whether it fails the “plain-error” test.

United States v. Booker, — U.S. —, —, -, 125 S.Ct. 738, 769 , 160 L.Ed.2d 621 (2005) (citations omitted, emphasis added). In contemplating that the plain-error doctrine would apply, the Supreme Court could have modified the doctrine if it had thought the district courts, rather than the reviewing courts, should determine the third prong. But the Supreme Court did not modify the plain-error doctrine in-this manner,- and this court may not do so. Thus, although I agree that a remand is a practical solution, and certainly the most convenient solution for the appellate courts, it is not what Booker and Dominguez Benitez tell us to do. We do not have the authority to overrule Supreme Court precedent and abdicate our non-delegable duty. 1 Agostini v. Felton, 521 U.S. 203, *1112 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997).

II. The Proper Procedure

This is not the typical case involving the plain-error doctrine. I agree with Judges Wardlaw and Gould the record here is sufficient to allow this reviewing court to conclude both the third and fourth prongs of the Olano test are satisfied. Olano, 507 U.S. at 731-32 , 113 S.Ct. 1770 .

However, the substantive law of what a court can consider at sentencing has changed since the pre-Booker sentencing hearings. The majority concludes that on remand the “views of counsel, at least in writing” should be obtained. Maj. Op. at 1084. But it doesn’t do much good to allow counsel to argue reasons for a lighter sentence if the record does not contain facts from which such argument can be made. It is a commonplace that argument must be based on facts. This is especially so when the mandatory Sentencing Guidelines in effect before Booker prohibited the sentencing court from considering some of the facts that the court can consider now that the Sentencing Guidelines are merely discretionary. Compare, e.g., 18 U.S.C. § 3553 (a) with U.S.S.G. § 5H1.

Only a prescient defendant would have made a factual record just in case the Guidelines were ruled to be discretionary. Few, if any, saw this result coming. And even if counsel in a particular case had foreseen this result, it is unlikely he would have made an offer of proof of facts which, at the time, the trial judge could not consider. Counsel would have had to risk the trial judge’s ire for wasting the court’s time and his clients’ anxiety for upsetting the judge. In short, no counsel with trial experience would have offered the very evidence the Sentencing Guidelines explicitly said the trial judge could not consider.

What then are we to do now that such evidence is relevant if the defendant is re-sentenced? The defendant must be given a proper opportunity to present evidence to this court to prove he was prejudiced by the error, which the post-Booker decisions by the First, Fifth, and Eleventh Circuits do not give a defendant See United States v. Mares, 402 F.3d 511 (5th Cir.2005); United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005); United States v. Rodriguez, 398 F.3d 1291 (11th Cir.2005). The defendant may want to present evidence on the many factors that are now relevant to sentencing that the sentencing judge could not consider under the mandatory Guidelines. 2

Normally, documents or exhibits that were not filed with the district court, admitted into evidence, nor considered by the district court cannot be filed as part of the record. See, e.g. Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.1988) (appellate courts consider only the “record before the trial judge when his decision was made”) (emphasis in original; internal quotes omitted); Tonry v. *1113 Security Experts, Inc., 20 F.3d 967, 974 (9th Cir.1994) (arbitrator’s decision was improperly included in appellant’s excerpts of record because it was never filed with the district court). Motions to supplement the record generally are not granted by this court if the evidence was not considered by the trial court below. See Southwest Center for Biological Diversity v. United States Forest Serv., 307 F.3d 964 , 975 n. 15 (9th Cir.2002). Similarly, judicial notice is also of limited use in this context because the proffered fact “must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.Evid. 201.

How then can the defendant meet his burden? One way to present new evidence on appeal is to attach that evidence to a motion to remand. Fed. R.App. P. 27(a)(2)(B); see also United States v. Christy, 3 F.3d 765, 768 (4th Cir.1993). Defendants should be given an opportunity to make a motion for either a full or a limited remand. 3 Defendants would then have the opportunity to adduce evidence upon which they could argue the now-relevant sentencing factors at a re-sentencing and how this new evidence would likely affect their sentence. The evidence presented can be as simple as the defendant’s affidavit or an affidavit by the attorney of what evidence he intends to adduce at the possible sentencing and upon which he was not able to rely before. The prosecution would then be free to attempt to rebut that evidence in its response to the motion. Fed. R.App. P. 27(a)(3).

Finally, in evaluating the defendant’s evidence, the test should be an objective test of whether a reasonable judge would have given the defendant a lower sentence such that it “undermines our confidence” in the outcome. We should not use a subjective standard which focuses on the particular judge who first imposed sentence.

III. Conclusion

Clearly the current state of the law has engendered some confusion. The circuit courts cannot agree what is to be done, and even within our own circuit, there are numerous and divergent opinions. The result is that the very uniformity in sentencing which the Court strove to preserve even while dramatically changing the sentencing procedures is still a distant goal. Perhaps the Court will develop a workable solution in one or more of these post- Booker cases, quite possibly involving a change to the plain-error doctrine. But unless and until that happens, I believe we are bound to apply existing law to the Booker issues.

. Additionally, for the reasons ably pointed out by Judges Wardlaw and Gould, a "quick look” remand may not be the easiest solution after all.

. Such factors include:

(1) specific offender characteristics under 18 U.S.C. § 3553 (a) that were barred by U.S.S.G. § 5H1, such as: age; educational and vocational skills; employment record; family ties and responsibilities; military, civic, charitable or public service; employment-related contributions; prior good works; lack of guidance as a youth; and a disadvantaged upbringing;

(2) the fact that “imprisonment is not an appropriate means of promoting correction and rehabilitation” under 18 U.S.C. § 3582 (a);

(3) comparative statistical evidence of sentencing for similar state crimes; and

(4) any other information about the defendant that is relevant. See 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”).

. Where the only issue in the case is a Booker issue, then the motion should be for a full remand because there is no need for this court to retain jurisdiction over the appeal. Where there are other issues in the case, the motion should be for a limited remand.