FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50564

Plaintiff-Appellee, D.C. No.

v.  CR-02-00319-DOC2 GABRIEL BERNARDO SANCHEZ,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

April 7, 2009—Pasadena, California

Filed June 23, 2009

Before: Harry Pregerson and David R. Thompson, Circuit

Judges, and Jeremy D. Fogel,* District Judge.

Opinion by Judge Thompson

*The Honorable Jeremy D. Fogel, United States District Judge for the

Northern District of California, sitting by designation. 

7587
COUNSEL

Ellyn Marcus Lindsay, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellee.

Gary Paul Burcham, San Diego, California, for the defendantappellant.

OPINION

THOMPSON, Senior Circuit Judge:

This appeal presents the question whether, on a limited

Ameline remand, a district court may consider post-sentencing

factors and circumstances in determining whether it would

have imposed the same sentence had it known the Sentencing

Guidelines were advisory.

BACKGROUND

Gabriel Bernardo Sanchez (“Sanchez”) was convicted of

thirty-three counts of mail fraud and eleven counts of money

laundering, in connection with an extensive charitable donaUNITED STATES v. SANCHEZ 7589
tion scam. Sanchez and his partner formed a “shell” church,

and then employed telemarketers to solicit donations on

behalf of the church’s purported charities. Of the millions of

dollars raised through this scam, less than $5,000 actually was

used for charitable purposes.

Sanchez was sentenced under the mandatory Sentencing

Guidelines, before the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005). Sanchez appealed both

his conviction and his sentence; we rejected those challenges,

but granted Sanchez a limited remand under United States v.

Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc). See

U.S. v. Lyons, 472 F.3d 1055 (9th Cir. 2007). 

On remand, both parties submitted briefing as to whether

resentencing was required. The district court requested additional briefing as to whether it could consider Sanchez’s postsentence rehabilitation efforts on a limited Ameline remand.

Sanchez appeared and addressed the court on his rehabilitation efforts. 

The district court concluded that it could not take postrehabilitative efforts into account on a limited Ameline

remand. The court then determined that it would have

imposed the same sentence had it known the Guidelines were

advisory. 

After the district court announced that Sanchez’s original

sentence would stand, Sanchez asked the court to recommend

that he participate in the residential drug and alcohol treatment program of the Bureau of Prisons (“BOP”). The district

court denied that request, citing Sanchez’s failure to raise the

issue at his original sentencing hearing.

On appeal, Sanchez argues the district court erred in determining that it could not consider post-sentencing factors on an

Ameline remand. Sanchez also contends the court erred in

7590 UNITED STATES v. SANCHEZ
denying his request for participation in the BOP treatment

program.

STANDARD OF REVIEW

When, on a limited Ameline remand, the district judge has

determined that “the sentence imposed would not have differed materially had he been aware that the Guidelines were

advisory,” the original sentence will stand. Ameline, 409 F.3d

at 1085. The defendant has “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.” Id. Where, as here, the defendant did not raise any

reasonableness challenges to the original sentence in his first

direct appeal, our scope of review is limited to determining

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

scope of his discretion in a post-Booker world.” U.S. v.

Combs, 470 F.3d 1294, 1297 (9th Cir. 2006).

I. Did the district court err in determining it was

precluded from considering evidence of Sanchez’s

post-sentence rehabilitation in connection with the

threshold inquiry on a limited Ameline remand?

[1] On an Ameline remand, a district court’s first task is to

determine “whether the sentence imposed would have been

materially different had the district court known that the

Guidelines were advisory.” Ameline, 409 F.3d at 1084. Sanchez argues that, in answering this question, the district court

should be able to take his post-sentence rehabilitation into

account. 

[2] Sanchez’s argument is foreclosed by the text of Ameline

itself. In Ameline, we instructed district courts to consider

“whether [they] would have imposed a materially different

sentence at the time of sentencing had [they] known that the

Guidelines were advisory rather than mandatory.” Ameline,

409 F.3d at 1083 (emphasis added). By instructing district

UNITED STATES v. SANCHEZ 7591
courts to retrace their steps, and view the question from their

vantage point “at the time of sentencing,” Ameline precludes

district courts from considering any rehabilitation or mitigating circumstance that occurred after the sentencing. Id.

The consideration of post-sentencing information is inconsistent with the limited nature of an Ameline remand. Unlike

the Third and Fourth Circuits, we do not provide an automatic

full resentencing to all defendants entitled to a post-Booker

remand. See, e.g., U.S. v. Davis, 407 F.3d 162 (3d Cir. 2005);

U.S. v. Hughes, 401 F.3d 540 (4th Cir. 2005). Rather, in Ameline, we adopted the limited bipartite approach taken by the

Second Circuit in United States v. Crosby, 397 F.3d 103 (2d

Cir. 2005). Ameline, 409 F.3d 1079-81 (citing Crosby, 397

F.3d at 117). 

We repeatedly have emphasized the limited nature of the

remand procedure set forth in Ameline: 

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 different under an advisory Guidelines system.

Combs, 470 F.3d at 1296-97; see also id. (holding that a

defendant is prohibited from raising new objections to his

original sentence on an Ameline remand, and declining to

engage in a “full-blown reasonableness review” where a

defendant had not challenged the reasonableness of his original sentence on his first direct appeal); U.S. v. Silva, 472 F.3d

683, 686 (9th Cir. 2007) (observing that an Ameline remand

is not a “full-fledged sentencing proceeding,” and concluding

that a defendant has no right to allocute on an Ameline

remand). Ameline remands were “designed to answer a single

question: Whether the district judge would have given [the]

7592 UNITED STATES v. SANCHEZ
defendant a materially different sentence under an advisory

Guidelines system.” Combs, 470 F.3d at 1297. 

[3] What Sanchez proposes amounts to a full resentencing.

Sanchez asks us to consider his post-rehabilitation efforts, and

contends that in other cases the court could consider subsequent convictions and other post-sentence developments. We

decline to do so. We consistently have rejected procedures

that would turn the limited Ameline remand into a de facto

resentencing. See, e.g., Combs, 470 F.3d at 1296; Silva, 472

F.3d at 686. 

Sanchez relies on 18 U.S.C. § 3661, which provides that

“[n]o 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.” Sanchez contends this language supports his position

that district courts should be able to consider post-sentencing

evidence in addressing the threshold Ameline inquiry. He also

contends that because 18 U.S.C. § 3553(a) does not bar the

consideration of post-sentencing evidence, district courts

should not be precluded from considering such evidence on

an Ameline remand.

[4] Sanchez’s reliance on §§ 3661 and 3553(a) is misplaced. The district court’s threshold inquiry on an Ameline

remand is not the equivalent of a full resentencing hearing,

where § 3661 and § 3553(a) would be applied in the first

instance. See, e.g., Silva, 472 F.3d at 686. If the district court

determines that the defendant’s sentence would have been different under an advisory Guidelines scheme, then the defendant is entitled to a full resentencing.1 Combs, 470 F.3d at

1296-97. Where, as here, the district court determines that the

sentence would have been the same, the inquiry is at an end.

1We do not decide today whether the consideration of post-sentencing

evidence would be appropriate in such circumstances. 

UNITED STATES v. SANCHEZ 7593
With our decision today, we join the Second, Sixth, and

Seventh Circuits in prohibiting district courts from considering post-sentencing factors or circumstances in conducting the

threshold inquiry after an Ameline remand. See, e.g., Ferrell,

485 F.3d at 688; U.S. v. Keller, 498 F.3d 316, 324 (6th Cir.

2007) (“[C]onsideration of post-sentencing factors is incompatible with the limited scope of a [an Ameline] remand”);

U.S. v. Re, 419 F.3d 582, 584 (7th Cir. 2005) (“The goal of

the [Ameline] remand is to determine if, at the time of sentencing, the district judge would have imposed a different sentence in the absence of mandatory guidelines. Post-sentencing

events or conduct simply are not relevant to that inquiry.”). 

As Sanchez points out, the First, Third, and Fourth Circuits

permit district courts to consider post-sentencing information

in certain circumstances. See, e.g., U.S. v. Aitoro, 446 F.3d

246, 254 n.10 (1st Cir. 2006); U.S. v. Lloyd, 469 F.3d 319,

325 (3d Cir. 2006); Hughes, 401 F.3d at 560 n.19. Unlike the

Third and Fourth Circuits, however, we do not engage in an

automatic full resentencing on an Ameline remand. Compare

Ameline, 409 F.3d at 1079-81, with Davis, 407 F.3d at 165,

and Hughes, 401 F.3d at 560. The Third and Fourth Circuit’s

precedent on this point cannot be superimposed on our more

limited Ameline remand procedure.

Rather, because Ameline adopted the same remand procedure articulated by the Second Circuit in Crosby, Ameline,

409 F.3d 1079-81, we often have turned to Second Circuit

precedent when addressing issues that have arisen under Ameline. See, e.g., Silva, 472 F.3d at 686 (rejecting the argument

that Ameline should not be read to “accept fully” the Second

Circuit’s Crosby approach, and observing that “our court has

repeatedly espoused the Crosby method.”); U.S. v. Montgomery, 462 F.3d 1067, 1069-72 (9th Cir. 2006) (referring repeatedly to Crosby and other Second Circuit precedent in

determining that Ameline requires submission of written statements by counsel). In Crosby, the Second Circuit held that on

an Ameline-type remand, the district court is limited to con7594 UNITED STATES v. SANCHEZ
sidering the “circumstances existing at the time of the original

sentence.” Crosby, 397 F.3d at 117. In a later opinion, the

Second Circuit faced the precise question raised by Sanchez

today, and held that a district court is forbidden from considering post-sentencing rehabilitation, or any other circumstance that did not exist at the time of the original sentencing.

Ferrell, 485 F.3d at 689-90. The Second Circuit has aptly

explained that the threshold inquiry on an Ameline remand is

“whether the original sentence would have been different, not

whether, if resentencing were to occur, the new sentence

would be different.” U.S. v. Lake, 419 F.3d 111, 114 n.3 (2d

Cir. 2005). The Second Circuit’s reasoning in Crosby and

Ferrell reinforces the conclusion we reach today.

[5] In sum, evidence of post-sentence rehabilitation is simply beyond the scope of the district court’s threshold inquiry

on a limited Ameline remand. The district court correctly

determined it was precluded from considering such evidence

in Sanchez’s case.

Sanchez nonetheless maintains that he is entitled to a full

resentencing before a different district judge. He contends that

the district court could not have made the Ameline decision

fairly after it was exposed to the “abundance of postsentencing information” presented at the hearing. 

We agree that the district court erred, probably on the side

of caution, in hearing evidence of Sanchez’s post-sentence

rehabilitation, but the evidence was not prejudicial to Sanchez. It was simply irrelevant to the district court’s inquiry.

Ultimately, the district court correctly determined that postsentencing conduct was not “an appropriate consideration” in

determining whether or not the court would have imposed the

same sentence under an advisory Guidelines scheme. 

UNITED STATES v. SANCHEZ 7595
II. Did the district court err in refusing to consider

Sanchez’s request for placement in the BOP drug and

alcohol treatment program?

Sanchez also contends the district court erred in refusing to

recommend him for the BOP drug and alcohol treatment program. Sanchez admits that he did not request placement in the

program at his original sentencing hearing. He contends, however, that his failure to raise the issue at that time is not a

valid reason to deny his request. We disagree. 

[6] A district court is without authority to consider new

challenges raised for the first time by a defendant on a limited

Ameline remand. Combs, 470 F.3d at 1297; see also Combs,

470 F.3d at 1298 (J. Berzon, concurring). This rule is not

unique to an Ameline remand. We have long held that when

a defendant fails to raise a nonconstitutional sentencing error

in his first direct appeal, the issue is waived. See, e.g., U.S. v.

Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008); U.S. v. James,

109 F.3d 597, 599 (9th Cir. 1997); U.S. v. Schlesinger, 49

F.3d 483, 485 (9th Cir. 1994). Sanchez failed to raise this

request at his original sentencing hearing and it was not presented as an issue in his first direct appeal. Accordingly the

issue has been waived.

CONCLUSION

The district court accurately understood the scope of its

review on this limited Ameline remand by ultimately concluding that it was precluded from considering evidence of Sanchez’s post-sentencing rehabilitation. The district court also

properly denied Sanchez’s request for placement in the BOP

treatment program, an issue which Sanchez had waived.

AFFIRMED.

7596 UNITED STATES v. SANCHEZ