FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-50597 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00185-AHS

DAVID FREDERICK THORNTON,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted

August 8, 2007—Pasadena, California

Filed January 10, 2008

Before: Stephen Reinhardt and Marsha S. Berzon,

Circuit Judges, and James K. Singleton,*

Chief District Judge.

Opinion by Judge Berzon

*The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

349
COUNSEL

W.C. Melcher and William Paul Melcher, Melcher, Melcher

& Melcher, Woodland Hills, California, for the appellant. 

George S. Cardona, Acting United States Attorney, Thomas

P. O’Brien, Chief, Criminal Division, & Curtis A. Kin, Chief,

Domestic Security and Immigration Crimes Section, U.S.

Department of Justice, Los Angeles, California, for the appellee.

OPINION

BERZON, Circuit Judge:

David Thornton appeals from the district court’s decision

to not re-sentence him after a limited remand pursuant to

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc). He challenges both the ruling on remand and certain

issues with respect to the original sentencing.

352 UNITED STATES v. THORNTON
I.

Over the course of several years, Thornton successfully

defrauded friends, family members, and complete strangers

out of hundreds of thousands of dollars. He used two

schemes: The first involved a charitable foundation he established purportedly to raise funds for kidney research for the

University of Southern California (“USC”). In return for the

funds raised, USC paid Thornton a salary and covered the

administrative costs of the fundraising. Although Thornton

turned over to USC some of the funds raised, he kept about

$150,000 for his own purposes. He also charged more than

$25,000 to credit cards taken out on behalf of his foundation

and USC, although USC never authorized any joint credit

cards. For about a year after USC terminated its relationship

with Thornton and his foundation, Thornton continued fraudulently to solicit funds. 

In the second scheme, Thornton purported to be working

for the United States government on various top secret missions, mostly involving channeling Nigerian money into the

United States. Thornton explained to his victims that these

transactions required heavy financing but would result in huge

returns. Many friends and family members believed the tale,

and Thornton bilked them out of hundreds of thousands of

dollars. He also unsuccessfully attempted to cash a counterfeit

check for $25 million, purportedly from the Nigerian government. 

Thornton was indicted and pleaded guilty to two counts of

mail fraud, two counts of wire fraud, and one count of impersonating a federal officer. The district court sentenced him to

96 months, around the mid-point of the Sentencing Guidelines

range. The Guidelines calculation included a 16-level

enhancement for amount of loss, USSG § 2F1.1(b)(1)(Q),1

1USSG § 2F1.1 was repealed in 2001. Because of ex post facto concerns

with applying higher loss adjustments enacted in the 2001 revisions, the

parties agreed that the 2000 Guidelines should apply. All citations to the

Guidelines herein are to the 2000 Guidelines. 

UNITED STATES v. THORNTON 353
which included the unsuccessful attempt to cash the $25 million check as intended loss. The calculation also included a

two-level enhancement because the offense involved a misrepresentation that Thornton was acting on behalf of a charity,

USSG § 2F1.1(b)(4)(A), and a two-level enhancement for

abuse of trust, USSG § 3B1.3. 

Thornton appealed the sentence, challenging, inter alia, the

loss calculation and the enhancement for abuse of trust. While

his appeal was pending, the Supreme Court held the mandatory Guidelines unconstitutional and directed that the Guidelines are to be advisory only. United States v. Booker, 543

U.S. 220 (2005). In an unpublished memorandum disposition,

this Court remanded Thornton’s appeal to the district court for

proceedings consistent with United States v. Ameline, 409

F.3d 1073 (9th Cir. 2005) (en banc). See United States v.

Thornton, 176 Fed. Appx. 765 (9th Cir. 2006). Although the

memorandum disposition also disposed of one issue raised by

Thornton regarding restitution, it did not mention or address

his challenges to two sentencing issues affecting the length of

incarceration, the loss calculation, and the abuse of trust

enhancement. 

On remand, the parties submitted position papers. Thornton

raised the same issues he had raised on appeal, and also

claimed that a pre-existing kidney condition had deteriorated

to the point that he needed medical care — a kidney transplant and possible liver transplant — that the Bureau of Prisons (“BOP”) could not provide. The district court’s decision

set forth the contentions of the parties and concluded that the

sentence would not have been materially different had the

Guidelines been advisory at the time of sentencing. 

In the current appeal, Thornton argues certain issues raised

but not decided on his first appeal, namely, that the district

court erred by (1) including the $25 million check in the

amount of loss calculation and (2) applying the abuse of trust

enhancement. He also argues that the district court did not

354 UNITED STATES v. THORNTON
adequately obtain the views of counsel on remand and that its

consideration of the sentencing goals and purposes set forth

in 18 U.S.C. § 3553(a) was inadequate.

II.

A.

Thornton raises two issues argued but not decided on his

first appeal. The government suggests that it is unclear

whether these issues are properly before us or whether,

instead, they were implicitly rejected on the first appeal. We

hold that they are properly here. 

Ameline directs that where Booker issued after a defendant

was sentenced but while his appeal was pending and where he

raised no challenge to the mandatory Guidelines below, this

Court should remand to the district court to determine

whether, had the Guidelines been advisory at the time of sentencing, the sentence would have been materially different.

Ameline, 409 F.3d at 1079. The purpose of the remand is to

assist this Court’s review of the defendant’s Booker claim. In

these cases, because the defendant did not raise a Booker-type

claim below, review on appeal is for plain error.2See id. at

1078. After Booker, there is error that is plain if a defendant

was sentenced under mandatory Guidelines and had her sentence enhanced on the basis of judge-found facts. The

Ameline remand helps this Court ascertain whether the error

affected substantial rights, by determining whether the sentence would have been different under advisory Guidelines.

See Ameline, 409 F.3d at 1078-81. Moreover, if the sentence

2Plain error is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 467 (1997)

(alterations in original) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)). If these conditions are met, an appellate court may exercise its

discretion to correct the error “only if (4) the error ‘seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.’ ” Id.

UNITED STATES v. THORNTON 355
would have been materially different had the district court

known the Guidelines were advisory, the integrity, fairness,

and public reputation of the proceeding — the fourth plain

error prong — will have been seriously affected. Id. at 1081.

For purposes of judicial efficiency, Ameline directs that when

a district court determines that the defendant’s sentence would

have been materially different under an advisory Guidelines

system, the court can simply vacate the sentence and resentence the defendant on remand treating the Guidelines as

advisory. Id. at 1080. These are the narrow parameters of an

Ameline remand; it is not an occasion to begin the sentencing

proceedings entirely anew. See id. at 1084-85; see also United

States v. Combs, 470 F.3d 1294, 1297 (9th Cir. 2006) (“The

limited [Ameline] 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.”). 

[1] Ameline does not directly address the fate of sentencing

issues raised but not decided in the first appeal. Post-Ameline

cases have treated non-Booker sentencing issues raised on

appeal in different ways: In some instances, we ruled on these

issues before remanding to the district court under Ameline on

the Booker plain error question. See, e.g., United States v.

Fifield, 432 F.3d 1056 (9th Cir. 2005). In others, as here, we

simply remanded under Ameline without ruling on the nonBooker issues that had been raised initially. 

The latter approach recognized that if the defendant is resentenced on remand, other sentencing issues may become

moot or change complexion. For example, here, the district

judge could have concluded on the Ameline remand that, had

she known that the Guidelines were not mandatory, she would

have sentenced Thornton more than two levels below the

Guidelines. If that had happened, then Thornton would have

had little reason to continue to pursue his argument about the

two-level abuse of trust enhancement. Indeed, as the Supreme

Court has recently explained, in some circumstances district

356 UNITED STATES v. THORNTON
courts have authority under Booker to disavow a Guidelines

enhancement on policy grounds and refuse to apply it. United

States v. Kimbrough, ___ U.S. ___, 2007 WL 4292040, at *14

(Dec. 10, 2007). Had the district court properly done so with

respect to a Guidelines enhancement on Thornton’s Ameline

remand, the Guidelines challenge on that ground would have

become moot. 

[2] The failure to address on appeal Thornton’s sentencing

issues raised before remanding under Ameline was therefore

in no way indicative of a rejection of his challenges in the first

appeal to the Guidelines calculations. See United States v.

Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (“For the [law of

the case] doctrine to apply [and preclude reconsideration of an

issue], the issue in question must have been decided explicitly

or by necessary implication in the previous disposition.”)

(quoting Herrington v. County of Sonoma, 12 F.3d 901, 904

(9th Cir. 1993)). Instead, the original panel was evidently of

the view, as were many other panels of this court ordering

Ameline remands, that the sentencing challenges were best

considered as a whole after the Ameline remand, as they

might alter after the remand. We therefore do not construe a

failure to address these issues on the first appeal as an implied

ruling on their merits. 

[3] Although Ameline is not explicit on the matter, it gives

no indication that this procedure is inconsistent with its directives. Further, a subsequent case discussing the implications

of Ameline appears to contemplate this procedure. In Combs,

we held that our review for “reasonableness” after an Ameline

remand is confined to determining whether “the district judge

properly understood the full scope of his discretion in a postBooker world.” 470 F.3d at 1297. This holding was expressly

limited, however, to the particulars of Combs’ situation, in

which “[a]t no time during his first appeal did defendant challenge the reasonableness of his sentence.”

3

Id. at 1295. This

3Determination that the district court properly calculated the Guidelines

range is part of Booker’s reasonableness review. See Gall v. United States,

___ U.S. ___, 2007 WL 4292116, at *7 (Dec. 10, 2007). 

UNITED STATES v. THORNTON 357
limitation suggests that if a sentencing challenge was raised

but not decided on the first appeal, it is preserved for full

review after an Ameline remand. See also United States v.

Williams, 475 F.3d 468, 476 (2d Cir. 2007) (“[W]hen we have

reached the Guidelines issues — or other sentencing issues —

raised by defendants in their initial appeal, further challenges

to our resolution of these issues after a district court has

declined to resentence pursuant to Crosby will be foreclosed

by the law of the case.”) (emphasis added). 

[4] Thus, we now expressly hold that where sentencing

issues are raised but not decided in an appeal prior to an Ameline remand, those issues are properly before the Court on any

subsequent appeal from the Ameline remand, along with any

challenges to the results of the Ameline remand itself.

B.

[5] Thornton challenges the inclusion of the $25 million

counterfeit check in the amount of loss enhancement. As he

signed a plea agreement expressly agreeing that the total loss

was close to $26 million, he affirmatively waived this issue.

See United States v. Olano, 507 U.S. 725, 732-33 (1993). We

therefore do not reach it.

C.

Thornton also challenges the two-level enhancement for

abuse of trust. Thornton did challenge this enhancement at the

original sentencing and we review its application.4

[6] The abuse of trust enhancement applies where the abuse

4Before Booker, we reviewed the application of the abuse of trust

enhancement — a mixed question of law and fact — de novo. See United

States v. Brickey, 289 F.3d 1144, 1153 (9th Cir. 2002). Although the same

standard of review may well apply after Booker, we need not decide the

issue. Under any standard of review, the enhancement was not error. 

358 UNITED STATES v. THORNTON
of a position of trust “facilitate[s] significantly the commission or concealment of a crime.” USSG § 3B1.3, cmt. background. A position of trust is “characterized by professional

or managerial discretion . . . . Persons holding such positions

ordinarily are subject to significantly less supervision than

employees whose responsibilities are primarily nondiscretionary in nature.” Id., cmt. n.1 (comparing, i.e., a bank

executive to a bank teller). The position need not be that of

a fiduciary. See United States v. Velez, 185 F.3d 1048, 1051

(9th Cir. 1999) (citing United States v. Garrison, 133 F.3d

831, 839 n.18 (11th Cir. 1998)). 

[7] Thornton does not contest that he held a position of

trust with respect to USC by virtue of his position as president

of a charitable foundation paid by USC to raise funds for it.

Nor does he deny that his abuse of this position of trust

allowed him more easily to commit the offenses. For example, he deposited donations made to the foundation directly

into his checking accounts, then used some of those funds for

his personal use, a diversion of funds that could not have

occurred had his financial transactions or those of the foundation been closely supervised. 

[8] Thornton does argue that when he solicited funds after

USC terminated its relationship with his foundation he was no

longer in a position of trust. But most of the fraudulent conduct relating to the purportedly charitable foundation took

place before USC terminated its relationship with Thornton.

The enhancement is thus entirely appropriate. 

Thornton also contends that the application of both the

abuse of trust enhancement and the enhancement for an

offense involving a misrepresentation that he was acting on

behalf of a charitable organization, USSG § 2F1.1(b)(4), was

impermissible double counting. Impermissible double counting “occurs where one part of the Guidelines is applied to

increase a defendant’s punishment on account of a kind of

harm that has already been fully accounted for by the applicaUNITED STATES v. THORNTON 359
tion of another part of the Guidelines.” United States v. Speelman, 431 F.3d 1226, 1233 (9th Cir. 2005) (quoting United

States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993)). There is

“nothing wrong with ‘double counting’ when it is necessary

to make the defendant’s sentence reflect the full extent of the

wrongfulness of his conduct.” Reese, 2 F.3d at 895. 

The enhancement for representing falsely that a defendant

is working on behalf of a government agency or charitable

organization recognizes that “defendants who exploit victims’

charitable impulses or trust in government create particular

social harm.” United States v. Romero, 293 F.3d 1120, 1126

(9th Cir. 2002) (quoting USSG § 2B1.1, cmt. background).

The abuse of trust enhancement, in contrast, recognizes that

“persons who abuse their positions of trust or their special

skills to facilitate significantly the commission or concealment of a crime . . . generally are viewed as more culpable.”

USSG § 3B1.3 cmt. background. 

[9] Here, Thornton not only represented that he was working on behalf of a charitable foundation and thereby encouraged contribution from members of the public, he also abused

the authority USC entrusted in him as the president of the

foundation to facilitate the commission and concealment of

his fraud. The false representation that he worked for a charity

harmed members of the public; the abuse of his position as

the foundation’s president harmed USC. As “[t]he two

enhancements stemmed from separate concerns,” the abuse of

trust enhancement was not impermissible double counting.

See United States v. Christiansen, 958 F.2d 285, 288 (9th Cir.

1992) (enhancements for abuse of trust and more than minimal planning did not constitute impermissible double counting). 

III.

Thornton also challenges the district court’s ruling on the

Ameline remand. We narrowly review a district court’s deter360 UNITED STATES v. THORNTON
mination, pursuant to an Ameline remand, that the sentence

would not have been materially different had the Guidelines

been advisory at the time of sentencing. Our review asks only

“[w]hether the district judge properly understood the full

scope of his discretion in a post-Booker world.” Combs, 470

F.3d at 1297. 

Thornton argues that the district court did not properly consider his medical condition and the lack of appropriate care

available through the BOP. By failing to grant Thornton’s

request for an independent medical evaluation, Thornton

maintains, the district court did not fully obtain the views of

counsel as required by Ameline. 

[10] We disagree. The district court did both obtain and

recognize the views of counsel regarding the medical issues.

Ameline does not require district courts on remand to appoint

or consider the evaluation of medical experts when requested

by counsel; it simply states that the “views of counsel, at least

in writing, should be obtained.” 409 F.3d at 1085 (quotation

marks omitted). Further, Thornton requested an independent

medical examiner only in the event that the district court

decide to re-sentence him, not to assist the district court in

making the threshold determination to re-sentence. 

[11] Nor is any other matter relating to Thornton’s health

properly before us in the present appeal. Thornton did argue

at the original sentencing that his physical health was a factor

warranting leniency, but did not raise the issue on the first

appeal, either in his original brief or in his supplemental brief

filed after Booker. As noted, an appeal from an Ameline

remand which does not result in resentencing is limited to the

question whether the district judge properly understood the

full scope of his post-Booker discretion. Combs, 470 F.3d at

1296-97. As a consequence, although issues raised but not

decided on appeal prior to an Ameline remand are preserved,

claims that are unrelated to the Ameline remand and that were

UNITED STATES v. THORNTON 361
available but not raised on the first appeal cannot be raised for

the first time on the second appeal.5

IV.

For the foregoing reasons, we AFFIRM. 

5Although the district court’s failure to respond to Thornton’s allegation

that the BOP is unable to treat a serious medical condition is troubling, we

note that a current BOP policy statement, of which we take judicial notice,

indicates the BOP is able to approve and pay for organ transplants at

approved transplant centers. Bureau of Prisons, Program Statement

P6031.01: Patient Care, at 47 (2005). Moreover, an inmate whose serious

medical needs are not being met can sue prison officials for Eighth

Amendment violations. See Estelle v. Gamble, 429 U.S. 97, 104-05

(1976); see also Carlson v. Green, 446 U.S. 14 (1980). 

362 UNITED STATES v. THORNTON