Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 02-30326 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00011-SEH

ALFRED ARNOLD AMELINE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted En Banc

March 24, 2005—San Francisco, California

Filed June 1, 2005

Before: Mary M. Schroeder, Chief Judge,

Diarmuid F. O’Scannlain, Michael Daly Hawkins,

Sidney R. Thomas, Kim McLane Wardlaw,

William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,

Johnnie B. Rawlinson, Richard R. Clifton, and Carlos T. Bea,

Circuit Judges.

Opinion by Judge Rawlinson;

Partial Concurrence and Partial Dissent by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Gould;

Partial Concurrence and Partial Dissent by

Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Bea

6345
COUNSEL

Steven Hubacheck, Federal Defenders of San Diego, San

Diego, California, for the defendant-appellant. 

UNITED STATES v. AMELINE 6349
Michael R. Dreeben, Esq., United States Department of Justice, Washington, DC, for the plaintiff-appellee. 

Anthony R. Gallagher, Esq., Assistant Federal Public

Defender, Great Falls, Montana, for amicus curiae Federal

Public and Community Defenders. 

OPINION

RAWLINSON, Circuit Judge: 

This case requires us to apply the United States Supreme

Court’s ruling in United States v. Booker, 125 S. Ct. 738

(2005). In Booker, the Supreme Court struck down the sentencing scheme created by the Sentencing Reform Act of

1984 to the extent that the Act mandated the imposition of

sentences predicated on facts not found by the jury or admitted by the defendant. To remedy the constitutional infirmity,

the Court severed the mandatory portions of the Act, rendering its sentencing provisions, including the Sentencing Guidelines, effectively advisory. Left unresolved by Booker is the

question of what relief, if any, is to be afforded to a defendant

who did not raise a Sixth Amendment challenge prior to sentencing. We reheard this case en banc to address this issue for

cases pending on direct review. 

We are aware that our opinion is of considerable interest to

the judges and practitioners in this Circuit who will face a

myriad of issues post-Booker. We will not endeavor to foresee

or address all potential ramifications of the Booker decision.

However, we think it appropriate to amplify the context

within which we decide this case in the hope of facilitating

the resolution of pending cases. 

We are, of course, not the only court of appeals to confront

this issue. Our colleagues across the country have also wres6350 UNITED STATES v. AMELINE
tled with the aftermath of Booker. The difficulty of the matter

is demonstrated by the fact that the various circuits have taken

divergent approaches. We appreciate and have benefitted

from their discussions in arriving at our own conclusion. 

As described in more detail below, we hold that when we

are faced with an unpreserved Booker error that may have

affected a defendant’s substantial rights, and the record is

insufficiently clear to conduct a complete plain error analysis,

a limited remand to the district court is appropriate for the

purpose of ascertaining whether the sentence imposed would

have been materially different had the district court known

that the sentencing guidelines were advisory. If the district

court responds affirmatively, the error was prejudicial and

failure to notice the error would seriously affect the integrity,

fairness and public reputation of the proceedings. The original

sentence will be vacated by the district court, and the district

court will resentence the defendant. If the district court

responds in the negative, the original sentence will stand, subject to appellate review for reasonableness. See Booker, 125

S. Ct. at 769. In essence, we elect to follow the approach

adopted by the Second Circuit in United States v. Crosby, 397

F.3d 103 (2d Cir. 2005). 

I.

Factual Background

Defendant Alfred Ameline pled guilty to knowingly conspiring to distribute methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and 846. The plea agreement approved

by the court did not specify the quantity of methamphetamine

involved, although at his change of plea hearing Ameline

admitted that “some methamphetamine” was involved in the

charged conduct. Ameline disputed the government’s assertion that the amount of methamphetamine attributable to him

was one and one-half kilograms. 

UNITED STATES v. AMELINE 6351
The Presentence Report (PSR) prepared by the Probation

Office attributed 1,079.3 grams of methamphetamine to Ameline. That amount resulted in a base offense level of 32, after

applying the drug equivalency table from the United States

Sentencing Guidelines Manual (Guidelines) § 2D1.1(c). The

probation officer’s conclusion as to drug quantities was based

solely on the investigative reports the officer had reviewed,

and the PSR contained a summary of the salient portions of

the reports. A two-level enhancement was recommended pursuant to § 2D1.1(b)(1) for possession of a firearm in connection with the charged offense, resulting in an adjusted offense

level of 34. With the recommended three-level adjustment for

acceptance of responsibility, the recommended total offense

level was 31. With a criminal history category of I, the sentencing range recommended in the PSR was 108 months to

135 months. 

Ameline filed objections to the PSR, challenging the

amount of drugs attributed to him. He also denied the truth of

the firearm allegations. However, he did not challenge the

recommended drug quantity enhancement as violative of the

Sixth Amendment. The probation officer dismissed Ameline’s

objections and reaffirmed his determination of the quantity of

methamphetamine in the original PSR and his recommendation as to the weapons enhancement. Ameline objected to the

final PSR finding in his sentencing memorandum to the court.

At the beginning of the sentencing hearing, before any witnesses were called, the district judge informed the parties how

he intended to proceed: 

It is the position of this court in this matter, as it is

in all such cases, that the facts as recited in the presentence report are prima facie evidence of the facts

set out there; that if the defendant challenges the

facts set forth in the presentence report, it is the burden of the defendant to show that the facts contained

6352 UNITED STATES v. AMELINE
in the report are either untruthful, inaccurate, or otherwise unreliable. 

The district judge then asked defense counsel to call his

first witness. However, before counsel called any witnesses,

the court again reiterated its intention: 

[I]t is my position that the statements in the presentence report, that is, statements of fact, are reliable

on their face and prima facie evidence of the facts

there stated. And I will be taking those into account

to the extent relevant to the obligations that I have in

fashioning sentence and fixing responsibility for

drug quantities, if they are not overcome by other

evidence presented at this hearing. Be guided

accordingly. 

Consistent with his objections, Ameline testified and presented witnesses to refute the drug amounts attributed to him

in the PSR. The government contended that an even larger

amount of drugs should be attributed to Ameline, based on

transactions not included in the PSR recommendation. No

specific testimony was directed toward the firearm enhancement. 

At the conclusion of the sentencing hearing, the district

court found that 1,603.60 grams of methamphetamine were

attributable to Ameline. That finding resulted in a base

offense level of 34, two levels higher than that recommended

in the PSR. The PSR described two additional transactions,

but the probation officer did not include those transactions in

calculating the recommended drug amount. The district court,

however, included the amounts involved in the described

transactions, thus establishing a higher base offense level. The

district court stated: 

I should let all parties know that all findings are

based upon a preponderance of the evidence stanUNITED STATES v. AMELINE 6353
dard and are established at least to that standard in

the view of the court. 

The district court found the § 2D1.1(b)(1) weapons

enhancement “undisputed,” and applied a two-level enhancement for an offense level of 36, but deducted three points for

timely acceptance of responsibility, for a total offense level of

33. The district court sentenced Ameline to 150 months, in the

middle of the 135 to 168-month Guidelines range. 

Ameline appealed. In his opening brief, Ameline challenged the district court’s allocation of the burden of proof

and the reliability of the hearsay evidence used to prove drug

quantity. Ameline did not initially contest the preponderance

of the evidence standard employed by the district court or the

propriety of judicial factfinding under a mandatory sentencing

regime. 

After the case was submitted for decision by a three-judge

panel of our court, but before a decision was filed, the

Supreme Court announced its decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). In light of Blakely, our panel held

that the determination of material sentencing facts by the district judge under a preponderance of the evidence standard,

rather than by a jury as part of its verdict, violated Ameline’s

Sixth Amendment rights and amounted to reversible plain

error. United States v. Ameline [Ameline I], 376 F.3d 967, 980

(9th Cir. 2004). The panel vacated Ameline’s sentence and

remanded with instructions that, if necessary, a jury must

determine the amount of drugs attributable to Ameline and

whether he possessed a weapon in connection with the

offense. Id. at 983. 

Within days of the filing of the panel decision in Ameline

I, the Supreme Court granted certiorari and scheduled oral

argument in Booker and a related case, United States v. Fanfan, 125 S. Ct. 12 (2004). Booker and Fanfan raised issues

regarding the application of Blakely to federal sentencing.

6354 UNITED STATES v. AMELINE
That led our court to defer further action on this case until

after the Supreme Court announced its decision in those cases.

After the Supreme Court’s decision in Booker was

announced, the panel issued an amended opinion. United

States v. Ameline [Ameline II], 400 F.3d 646 (9th Cir. 2005).

As before, the panel concluded that the district court had committed reversible plain error because Ameline’s sentence “exceeded ‘the maximum authorized by the facts established by

a plea of guilty or a jury verdict.’ ” Id. at 653 (quoting

Booker, 125 S. Ct. at 756). The panel vacated the original sentence and remanded for resentencing. Id. at 657-58. 

We vacated the panel opinion and granted rehearing en

banc. United States v. Ameline, 401 F.3d 1007 (9th Cir. 2005).

Although Ameline did not challenge the constitutionality of

the Guidelines in the district court or in his opening brief on

appeal, we conclude, as did the three-judge panel, that it is

nonetheless appropriate to permit him to raise those issues.

See United States v. Valdez, 195 F.3d 544, 547 n.3 (9th Cir.

1999). 

II.

The Booker Decision

Before Booker, sentencing judges were bound by the

Guidelines. See 18 U.S.C. § 3553(b)(1). After conviction, the

Guidelines required the sentencing judge to make factual findings about the defendant and the offense and then, based on

the conviction and facts found independently by the court,

determine the appropriate sentencing range. Once the correct

sentencing range was determined, departure from that range

was authorized only for reasons stated in the Guidelines or

where

the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not

UNITED STATES v. AMELINE 6355
adequately taken into consideration by the Sentencing Commission in formulating the guidelines that

should result in a sentence different from that

described. 

18 U.S.C. § 3553(b)(1). 

[1] In Booker, the Supreme Court held that the Guidelines

as constituted violated the Sixth Amendment. Booker, 125

S. Ct. at 756. That outcome followed from the conclusion that

the Sixth Amendment precludes a judge from enhancing a

sentence based on extra-verdict findings (other than the fact

of prior conviction) in a mandatory sentencing regime. Id. at

748-49. The majority opinion, authored by Justice Stevens,

observed that “[i]f the Guidelines as currently written could

be read as merely advisory provisions that recommended,

rather than required, the selection of particular sentences in

response to differing sets of facts, their use would not implicate the Sixth Amendment.” Id. at 750. Therefore, if a particularly prescient sentencing judge, pre-Booker, had made and

used the same extra-verdict findings under the same mandatory guidelines regime, but made clear that he was treating the

Guidelines as advisory rather than binding, no Sixth Amendment violation would have occurred under Booker. See id.

(“[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no

right to a jury determination of the facts that the judge deems

relevant.”); see also United States v. Coles, 403 F.3d 764, 768

(D.C. Cir. 2005); United States v. Paladino, 401 F.3d 471,

483 (7th Cir. 2005). 

[2] A separate majority of the Court remedied the Sixth

Amendment infirmity in the federal sentencing scheme by

making the Guidelines effectively advisory. The remedial portion of Booker, authored by Justice Breyer, agreed that “without this provision—namely the provision that makes ‘the

relevant sentencing rules mandatory and imposes binding

requirements on all sentencing judges’—the statute falls out6356 UNITED STATES v. AMELINE
side the scope” of the Sixth Amendment’s jury trial requirement. Booker, 125 S. Ct. at 764 (citations and alteration

omitted). Rather than engraft a jury trial requirement onto the

mandatory sentencing guideline system, the remedial opinion

severed from the Reform Act “the provision that requires sentencing courts to impose a sentence within the applicable

Guidelines range (in the absence of circumstances that justify

a departure) and the provision that sets forth standards of

review on appeal, including de novo review of departures

from the applicable Guidelines range.” Id. (citations omitted).

[3] It is crucial for our current purpose to appreciate the

distinction drawn by the Supreme Court and by us. Standing

alone, judicial consideration of facts and circumstances

beyond those found by a jury or admitted by the defendant

does not violate the Sixth Amendment right to jury trial. A

constitutional infirmity arises only when extra-verdict findings are made in a mandatory guidelines system. This conclusion has been reached by a majority of the appeals courts that

have decided Sixth Amendment sentencing issues postBooker. See United States v. Antonakopoulos, 399 F.3d 68, 75

(1st Cir. 2005); United States v. Williams, 399 F.3d 450, 458

(2d Cir. 2005); United States v. Mares, 402 F.3d 511, 518 (5th

Cir. 2005); Paladino, 401 F.3d at 482-83 (7th Cir.); United

States v. Pirani, No. 03-2871, 2005 WL 1039976, at *5 (8th

Cir. Apr. 29, 2005) (en banc); United States v. Lawrence, No.

02-1259, 2005 WL 906582, at *12 (10th Cir. Apr. 20, 2005);

United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.

2005); United States v. Smith, 401 F.3d 497, 499 (D.C. Cir.

2005) (per curiam). 

III.

Application of the Plain Error Standard of Review

[4] As explained, because the Sixth Amendment error was

not raised in the district court, to warrant relief the error must

constitute plain error. Plain error is “(1) error, (2) that is plain,

UNITED STATES v. AMELINE 6357
and (3) that affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002) (citation, alteration and internal

quotation marks omitted). If these three conditions of the

plain error test are met, an appellate court may exercise its

discretion to notice a forfeited error that (4) “seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and alteration omitted).1

[5] An error is plain if it is “contrary to the law at the time

of appeal . . .” Johnson v. United States, 520 U.S. 461, 468

(1997). Ameline’s claim of sentencing error meets this

requirement, because Booker expressly invalidated the federal

sentencing guidelines. See Booker, 125 S. Ct. at 755-56. The

sentencing judge’s enhancement of Ameline’s sentence in

reliance upon judge-made findings under the then-mandatory

guidelines, was, therefore, constitutional error. See id. 

A more vexing inquiry lies in the third prong of the plain

error test: whether the error affected Ameline’s substantial

rights, that is, whether the outcome of Ameline’s sentencing

was affected by the erroneous enhancement of Ameline’s sentence on the basis of judge-made findings in the mandatory

guidelines regime. Ameline bears the burden of persuading us

that his substantial rights were affected. He must establish

“that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United

States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004)

(citations and internal quotation marks omitted). Because the

error turns on the use of judge-found facts in a mandatory

guidelines system and those guidelines are now advisory,

Ameline must demonstrate a reasonable probability that he

would have received a different sentence had the district

judge known that the sentencing guidelines were advisory. 

1A different analysis will apply when a defendant preserves his Sixth

Amendment claim by challenging the sentencing guidelines on constitutional grounds before the district court. See Pirani, 2005 WL 1039976, at

*3-4; United States v. Fagans, No. 04-4845, 2005 WL 957187, at *2, (2d

Cir. Apr. 27, 2005); Antonakopoulos, 399 F. 3d at 76. 

6358 UNITED STATES v. AMELINE
[6] The difficulty in assessing whether the sentencing error

affected Ameline’s substantial rights arises because the record

does not provide an inkling of how the district court would

have proceeded had it known that the Guidelines were advisory rather than mandatory. That is not surprising, since at the

time of sentencing, the district court and the parties were

operating under the reasonable belief that the Guidelines were

mandatory. We surmise that the record in very few cases will

provide a reliable answer to the question of whether the judge

would have imposed a different sentence had the Guidelines

been viewed as advisory. Although on occasion a district

court judge has expressed frustration with the binding nature

of the Guidelines, it was very rare for a judge, within the

record of an individual case, to express that view. Pre-Booker,

there simply would have been no need or practical reason for

the judge to make such a record, since the judge could not

have expected then that it would make a legal difference. 

[7] We conclude that the best way to deal with this unusual

situation is to follow the approach adopted by our colleagues

on the Second, Seventh, and D.C. Circuits2 and ask the person

who knows the answer, the sentencing judge.3 Rather than

affirm a sentence that was unconstitutional and may have

been prejudicial, we elect to remand to the district court to

2Crosby, 397 F.3d at 120 (2d Cir.); Paladino, 401 F.3d at 483-84 (7th

Cir.); Coles, 403 F.3d at 769-71 (D.C. Cir.). The Fifth Circuit has also

expressed openness to this approach. See United States v. Pennell, No. 03-

50926, 2005 WL 1030123, at *6 (5th Cir. May 4, 2005). 

3The district court judge who imposed the sentence in this case is still

a sitting federal judge. We recognize that in some cases the original sentencing judge may no longer be available, due to death, disability or retirement, but the number of such cases should be very low. The sentencing

judge’s unavailability will not necessarily result in an inability to proceed.

The record may reflect an admission that was undiscovered in the appellate process. There may be a negotiated sentence. The defendant may even

elect not to challenge his sentence on remand. Because the situation of an

unavailable judge is not before us, we leave that issue for resolution in a

case that presents that issue. 

UNITED STATES v. AMELINE 6359
answer the question whether the sentence would have been

different had the court known that the Guidelines were advisory. This is “[t]he only practical way (and it happens also to

be the shortest, the easiest, the quickest, and the surest way)

to determine whether” there was prejudice. Paladino, 401

F.3d at 483. If the district court responds affirmatively, the

error undermines our confidence in the outcome. See id. at

484. On the other hand, if the district court responds in the

negative and explains why on the record, the original sentence

will stand, provided it is reasonable. See id.; cf. Booker, 125

S. Ct. at 769 (holding that both the Sixth Amendment ruling

and the remedial interpretation of the Reform Act, including

the reasonableness standard, apply to all cases pending on

direct review). The remand contemplated under Crosby is a

limited one designed to permit the sentencing judge to inform

the reviewing court’s analysis of whether the sentencing judge

“would have imposed a materially different sentence” had he

been aware of the now-advisory nature of the sentencing

guidelines. Crosby, 397 F.3d at 117. 

In Crosby, the Second Circuit relied on 18 U.S.C. § 3742(f)

to support its approach that a third choice is available for election by an appellate court assessing error. Id. That subsection

provides in pertinent part: 

If the court of appeals determines that— 

(1) the sentence was imposed in violation of law

. . . the court shall remand the case for further sentencing proceedings with such instructions as the

court considers appropriate . . . 

18 U.S.C. § 3742(f)(1). 

[8] The Second Circuit reasoned that the power to remand

for resentencing necessarily encompasses the lesser power to

order a limited remand. Crosby, 397 F.3d at 117. This is consistent with our case law. As we recently explained in United

6360 UNITED STATES v. AMELINE
States v. Gunning, 401 F.3d 1145 (9th Cir. 2005), appellate

courts are not precluded from limiting the scope of issues on

remand, or the district court’s consideration of evidence and

arguments. Id. at 1148. 

The Second Circuit viewed the limited remand as a solution

to the dilemma facing appellate courts post-Booker: in the

overwhelming majority of cases, we simply do not know

whether the sentencing judge would have imposed the same

sentence had he known that the sentencing guidelines were

advisory, rather than mandatory. As an alternative to presuming prejudice, presuming non-prejudice, venturing to assess

prejudice on a case-by-case basis or engaging in wholesale

remands in cases where the record is not sufficiently developed to inform the appellate court’s plain error analysis, the

Second Circuit elected to remand to the district court. See

United States v. Gonzalez, No. 04-1956, 2005 WL 1023059,

at *3 (2d Cir. May 3, 2005) (citing Crosby, 397 F.3d at 117).

[9] We recognize that the Seventh and D.C. Circuits, while

endorsing limited remands in Booker cases, have adopted a

slightly different procedure from that in Crosby. Under the

Second Circuit approach, if a district court judge determines

that resentencing is warranted after remand from the court of

appeals, he or she can simply vacate the sentence and resentence. Crosby, 397 F.3d at 120. The Seventh and D.C. Circuits, on the other hand, retain jurisdiction through the limited

remand process, thus requiring the district court to indicate

that it would have sentenced differently, the court of appeals

to vacate the sentence, and finally, the court of appeals to

remand to the district court for resentencing. Paladino, 401

F.3d at 484; Coles, 2005 WL 783069 at *7. The two procedures are very similar, but the Crosby procedure is less cumbersome. See Paladino, 401 F.3d at 484 (“Our procedure is

not identical to that set forth in Crosby, though it is very

close.”); Coles, 2005 WL 783069 at *7 (D.C. Cir. Apr. 8,

2005) (“We note that the ‘limited remand’ procedures adopted

by the Second and Seventh Circuits offer slightly different

UNITED STATES v. AMELINE 6361
approaches.”). Booker itself does not require the appellate

court to undertake the additional step of vacating and remanding if the district court indicates that it wishes to resentence.

Therefore, to facilitate the expeditious handling of Booker

cases, we follow the Second Circuit in not retaining jurisdiction throughout the limited remand. 

We acknowledge that this limited remand approach has not

been adopted by all courts to face the post-Booker problem.

Some circuits have held that when the reviewing court cannot

determine whether the Sixth Amendment error was prejudicial, the defendant has not carried his burden and relief must

be denied. See Antonakopoulos, 399 F.3d at 80 (1st Cir.);

Mares, 402 F.3d at 521-22 (5th Cir.); Pirani, 2005 WL

1039976, at *6-7 (8th Cir.); Rodriguez, 398 F.3d at 1301

(11th Cir.). We do not quarrel with this position as a matter

of doctrine; that is the way plain error review normally works.

As we indicated above, however, assigning such a burden

to a defendant in this context requires him to demonstrate a

sufficient probability that the district court would have

imposed a different sentence under an advisory system, even

though there would have been no reason for the sentencing

court to so indicate. The sentencing court presumably knows

the answer to the relevant question and would likely have

made a record had it known at the time of sentencing that it

would make a difference. Resolving unpreserved sentencing

error through a limited remand is comparably easy and yields

a result that is certain. See Williams, 399 F.3d at 457-59. If we

decline to find out what the district court knows unless the

defendant can make a showing of something over which he

had no control, the defendant will surely feel abused, with

some justification, and everyone will be left to wonder about

whether the sentencing court might have acted differently. It

seems to us that would itself undermine the fairness, integrity

6362 UNITED STATES v. AMELINE
and public reputation of the judicial proceedings, something

which we should try to avoid.4

Other circuits have, like our own decision in Ameline II,

taken another approach. Notably, some have held that “where

a defendant’s sentence was enhanced based on facts neither

admitted to nor found by a jury, . . . the defendant can demonstrate plain error and may be entitled to resentencing.” Davis,

2005 WL 976941, at *1 (3d Cir.); Hughes, 401 F.3d at 548-

49 (4th Cir.); Oliver, 397 F.3d at 379-80 (6th Cir.). Following

that reasoning, prejudice is determined by comparing the sentence that the defendant could have received based solely on

the jury’s verdict (or on facts otherwise admitted by defendant) with the sentence that he actually received. If the former

sentence would have been more favorable to the defendant,

the defendant was prejudiced. See, e.g., Hughes, 401 F.3d at

548-49. As discussed above, however, we view judicial factfinding as erroneous only when coupled with a mandatory

guidelines system. Moreover, upon remand the district court

will consult the guidelines as required by Booker and will be

free to impose exactly the same sentence. “[I]f the judge

would have imposed the same sentence even if he had thought

the guidelines merely advisory . . . and the sentence would be

lawful under the post-Booker regime, there is no prejudice to

the defendant.” Paladino, 401 F.3d at 483; accord Williams,

399 F.3d at 459; Antonakopoulos, 399 F.3d at 80-81. On balance, therefore, we conclude that the limited remand approach

is preferable. As described by Judge Posner, it is

the middle way between placing on the defendant the

impossible burden of proving that the sentencing

4We do not imply that all forfeited sentencing errors should be

addressed by limited remand. Booker presents a unique situation. After

Booker, we are left with hundreds of unconstitutional sentences pending

on direct review, and we should not consign the vast majority of these

defendants to serve illegal terms when we have an accurate way to resolve

the plain error question. We need not speculate about the effect of the

error; we can simply ask the sentencing judge. 

UNITED STATES v. AMELINE 6363
judge would have imposed a different sentence had

the judge not thought the guidelines were mandatory

and requiring that all defendants whose cases were

pending when Booker was decided are entitled to be

resentenced, even when it is clear that the judge

would impose the same sentence and the court of

appeals would affirm. 

Paladino, 401 F.3d at 484-85. 

We come at last to the fourth prong of plain error review.

Here we examine whether a plain and demonstrably prejudicial error “seriously affects the fairness, integrity, or public

reputation of [the] judicial proceedings.” Johnson v. United

States, 520 U.S. 461, 467 (1997) (citation and alteration omitted). This inquiry hinges on the question presented to the district court. If the district court would have imposed a different

sentence in an advisory regime, we “exercise [our] discretion

to notice [the] forfeited error,” id., because “it is a miscarriage

of justice to give a person an illegal sentence, just as it is to

convict an innocent person,” Paladino, 401 F.3d at 483. The

original sentence will be vacated, and the district court, with

the defendant present, will resentence in accordance with the

Reform Act as modified by Booker. See Crosby, 397 F.3d at

120. 

Our colleagues in dissent criticize our adoption of the

approach articulated in Crosby, characterizing the limited

remand procedure as contradicting Booker, abdicating our

obligation to conduct appellate review, subsuming an inaccurate prejudice inquiry, disregarding district court judges who

have left the bench, embracing illusory efficiencies, and

encouraging cursory review. See e.g., Wardlaw Concurring/

Dissenting Opinion, p. 6375; Gould Concurring/Dissenting

Opinion, pp. 6403, 6412, 6417. Despite our colleagues’

thoughtful presentation of their views, we remain convinced

that the limited remand procedure set forth in Crosby best

6364 UNITED STATES v. AMELINE
resolves this unique issue that has arisen in the wake of the

Supreme Court’s holding in Booker. 

Unfortunately, we cannot look to Booker for guidance in

assessing plain error, because Booker did not address plain

error in the context of resolving the issues in that case. See

Antonakopoulos, 399 F.3d at 79 n.10 (noting that no plain

error issue was before the Court in Booker). Although it is

true that the Supreme Court did not approve a limited remand

procedure, neither did it prohibit one. Similarly, we cannot

conclude from the fact that Booker’s case was remanded for

resentencing that remand for resentencing is appropriate in all

cases. The Supreme Court expressly instructed otherwise. See

Booker, 125 S. Ct. at 769 (“Nor do we believe that every

appeal will lead to a new sentencing hearing.”). The fact

remains that different approaches have been taken by courts

post-Booker. We remain of the view that the Crosby approach

is consistent with Booker. 

[10] Nor do we agree that the limited remand procedure

abdicates our obligation to conduct appellate review. To the

contrary, the procedure provides for more accurate appellate

review. Without the benefit of the district court’s views, we

would be left with review of a potentially misleading record.

District court judges often make remarks at sentencing for

purposes other than fact-finding. A district court judge may

choose to say some encouraging words for the benefit of the

defendant’s family; a district court judge may decide to lecture the defendant with a warning. District court judges have

also been known to make stray comments about the Guidelines during sentencing, without necessarily intending for

them to be interpreted as meaning that a different sentence

would have been imposed under a discretionary sentencing

scheme. It would be a mistake for us to attribute fresh meaning to comments made in an entirely different context. It

would also be a mistake to infer from a district court’s silence

that the district court would not have made a different decision under a different sentencing scheme. In sum, in this

UNITED STATES v. AMELINE 6365
unusual context, our ability to assess plain error based on the

cold record is significantly impaired. Although no system is

perfect, our appellate plain error review will be better

informed and more accurate by obtaining the district court’s

findings. Because a vacation of the sentence would be

required if the district court would have imposed a different

sentence under a discretionary sentencing system, it is also

appropriate for us to direct the district court to proceed with

resentencing if the Booker error prejudiced the defendant.

Identifying legal error and providing direction to the district

court on how to cure it is a quintessentially appellate function.

Adopting a limited remand procedure to effectuate resolution

of legal error does not abdicate our appellate responsibility in

the least. Indeed, it is entirely consistent with our usual procedures in such circumstances. See, e.g., Gunning, 401 F.3d at

1148 (describing the prior holding in which the panel

remanded to ask the district court “to make findings on the

record if it had already considered the minor role adjustment,

and to resentence if necessary.”) 

Further, despite our dissenting colleague’s interpretation of

the majority opinion as encompassing “every pre-Booker

defendant asserting plain error,” the limited remand is

invoked only when it cannot be determined from the record

whether the judge would have imposed a materially different

sentence had he known that the Guidelines are advisory rather

than mandatory. See Williams, 399 F.3d at 458-59 (observing

that the limited remand procedure is appropriate where the

record leaves uncertainty regarding what sentence would have

been imposed absent error).5

5

In challenging the Second Circuit’s reliance on 18 U.S.C. § 3742 as

authority for ordering a limited remand, our colleague cites to dissenting

opinions in Booker. Those dissents, of course, are not precedential. See

Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th Cir. 1996)

(noting that a dissenting Supreme Court opinion is not binding precedent

and “does not tell us how a majority of the Court would decide.”). The dissent also relies on the ipse dixit criticism in Rodriguez. However, we are

6366 UNITED STATES v. AMELINE
Only after determining that the record did not sufficiently

inform the reviewing court’s analysis, and only after concluding that the first two prongs of the plain-error test were met

did the court in Crosby remand the matter to the district court.

See Williams, 399 F.3d at 460. Rather than being a dereliction, the remand was designed to avoid “leaving in place an

error-infected sentence” due to the lack of an adequate record.6

See id. at 461. 

Our dissenting colleague also takes us to task for “asking

the wrong question of the district court,” and for undertaking

“to predict the likely outcome of a remand.” However, the

limited remand does not seek a response to the question of

what the district court would do on remand. Instead, the limited remand seeks a response to the question of whether the

district court would have imposed a materially different sentence at the time of sentencing had it known that the Guidelines were advisory rather than mandatory. See Paladino, 401

F.3d at 485. This inquiry mirrors the holdings of Dominguez

Benitez, 124 S. Ct. at 2340, and Kotteakos v. United States,

328 U.S. 750, 764 (1946) (describing the appropriate inquiry

as the effect on the jury’s decision, i.e., the outcome).7

persuaded that the Second Circuit has the better of this argument. See

Crosby, 397 F.3d at 117 (noting that § 3742(f) provides that an appellate

court may remand “with such instructions as the court considers appropriate.”). Finally, the language in § 3742 conditioning the power to remand

upon a determination that “the sentence was imposed in violation of law”

does not undermine the Second Circuit’s approach, because any sentence

imposed under the mandatory guidelines system with extra-verdict findings was imposed in violation of law. See Booker, 125 S. Ct. at 748

(describing such a sentence as violating the Sixth Amendment.). 

6We acknowledge the existence of cases instructing reviewing courts to

review the “entire record.” See e.g., Dominguez Benitez, 124 S. Ct. at

2340. We have no quarrel with that directive in principle. However, that

principle is of no assistance when review of the “entire record” nevertheless requires resort to rank speculation to complete the plain error analysis.

7We note in passing that refraining from adopting the limited remand

approach merely because the parties advocated against it is more of an

abdication than remanding a matter to the district court to inform the plain

error analysis. 

UNITED STATES v. AMELINE 6367
As noted, we cannot and should not attempt to anticipate

and address every issue that may arise in the course of resolving pre-Booker sentencing appeals. Many of the “illusory efficiency” scenarios described by our dissenting colleagues are

of that nature. Although it is true that a limited remand could

result in a subsequent appeal, so could a resentencing. Nevertheless, the relative prospect of future appeals should not deter

us from adopting a process that we view as facilitating reliable appellate review. And although efficiency is an important

consideration in the administration of justice, see Government

Emp. Ins. Co. v. Dizol, 133 F.3d 1220, 1226-27 (9th Cir.

1998) (recognizing the importance of judicial economy), it is

not the most important consideration in the context of this

case. More important is the opportunity under the Crosby

approach to engage in a more accurately informed plain error

review. See Coles, 403 F.3d at 770. Indeed, if efficiency were

paramount, the procedure of choice would be one that

declined to recognize most forfeited Booker errors. See e.g.,

Rodriguez, 398 F.3d at 1304 (explaining that “where the

record does not provide ‘any indication’ that there would have

been a different sentence,” the defendant loses.). 

Finally, we do not share the concern regarding cursory

review on remand that is articulated in the “dissent from the

Seventh Circuit’s decision to adopt the same type of limited

remand rule.” We are confident that our conscientious and

able colleagues on the district courts throughout this Circuit

will continue to give each case the individualized attention it

deserves.

IV.

The Process to be Followed

[11] In hopes of making clear the process that we conclude

should be followed, we outline it here. We begin with our

own review. Booker explicitly stated that its holding applies

to all cases pending on direct appeal. Booker, 125 S.Ct. at

6368 UNITED STATES v. AMELINE
769. Even where the briefs filed by the parties do not raise a

Booker objection, we conclude that the issue may be raised

and should be considered. 

When faced with an unpreserved Booker/Fanfan error, the

reviewing panel must first determine if an eligible party wants

to pursue the subject. Although either the defendant or the

government may raise the nonconstitutional error that a sentence was erroneously imposed under guidelines believed to

be mandatory, Booker/Fanfan 125 S.Ct. at 769, the Sixth

Amendment objection — that the defendant’s sentence was

enhanced by judge-found facts under a mandatory Guidelines

system — is available to the defendant alone.8 However,

because we do not assume that every defendant will want to

pursue resentencing, the limited remand procedure must

include an opportunity for defendants with pending appeals to

opt out of resentencing by promptly notifying the district

court judge. See Crosby, 397 F.3d at 118. 

If an eligible party seeks resentencing under Booker/

Fanfan, we will then engage in the plain error analysis

described in this opinion. If that analysis leads the panel to the

same dead end that we reach here, where it is not possible to

reliably determine from the record whether the sentence

imposed would have been materially different had the district

court known that the Guidelines were advisory, we will

remand to the sentencing court to answer that question. 

8

In a case where the district court did not treat the sentencing guidelines

as advisory but the defendant’s sentence was not enhanced by extraverdict findings —such as where there were no sentencing enhancements

or where the defendant acknowledged the facts necessary to justify the

enhancement—a different, nonconstitutional error occurs. See United

States v. Castillo, Nos. 02-3584 & 02-4344, 2005 WL 1023029 (7th Cir.

May 3, 2005) (citing cases); Lawrence, 2005 WL 906582, at *12. Neither

Ameline nor the government has raised the issue of nonconstitutional error

in this appeal. 

UNITED STATES v. AMELINE 6369
In answering the question we pose, the district court need

not determine or express what the sentence would have been

in an advisory system. It is enough that the sentence would

have been materially different. We agree with the Second Circuit that the “views of counsel, at least in writing,” should be

obtained. See Crosby, 397 F.3d at 120. 

If the district court judge determines that the sentence

imposed would not have differed materially had he been

aware that the Guidelines were advisory, the district court

judge should place on the record a decision not to resentence,

with an appropriate explanation. A party wishing to appeal the

order may file a notice of appeal as provided in Fed. R. App.

P. 4(b).9

If the district court determines that the sentence imposed

would have differed materially if the district court judge were

applying the Guidelines as advisory rather than mandatory,

the error was prejudicial, and the failure to notice the error

would seriously affect the integrity, fairness and public reputation of the proceedings.10 In such a case, the original sentence will be vacated and the district court will resentence

with the defendant present. In resentencing the defendant, the

district court is permitted to take a fresh look at the relevant

facts and the Guidelines consistent with Booker, the Sentencing Reform Act of 1984, Rule 32 of the Federal Rules of

Criminal Procedure, and this opinion. See Gunning, 401 F.3d

at 1148; see also United States v. Matthews, 374 F.3d 872,

880 (9th Cir. 2004). In either case, the defendant and the gov9A new appeal taken after the filing of the district court’s order will be

subject to the usual procedure pertaining to comeback cases, as provided

in General Order 3.7, General Orders of the Ninth Circuit Court of

Appeals (2005). 

10The parties and the district court may agree in a given case to proceed

directly to a resentencing proceeding, without the need for submissions by

counsel or separate consideration of the question of whether the previous

sentence would have been different had the sentencing court known that

the Guidelines were not mandatory. 

6370 UNITED STATES v. AMELINE
ernment 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. Booker,

125 S. Ct. at 765-66. 

V.

Erroneous Allocation of the Burden of Proof

[12] The government has conceded that the district court

erred in placing the burden of proof on the defendant to disprove the factual basis for the base level offense and sentence

enhancements sought by the government. The government

“bear[s] the burden of proof for any fact that the sentencing

court would find necessary to determine the base offense

level.” United States v. Howard, 894 F.2d 1085, 1090 (9th

Cir. 1990). As we explained in Howard, “[s]ince the government is initially invoking the court’s power to incarcerate a

person, it should bear the burden of proving the facts necessary to establish the base offense level.” Id. Here, by placing

the burden on Ameline to disprove the factual statements

made in the PSR, the district court improperly shifted the burden of proof to Ameline and relieved the government of its

burden of proof to establish the base offense level. 

Of course, the district court may rely on undisputed statements in the PSR at sentencing. United States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000). However, when

a defendant raises objections to the PSR, the district court is

obligated to resolve the factual dispute, see Fed. R. Crim. P.

32(i)(3)(B), and the government bears the burden of proof to

establish the factual predicate for the court’s base offense

level determination. Howard, 894 F.2d at 1090. The court

may not simply rely on the factual statements in the PSR. 

[13] The government also bears the burden of proof when

it seeks sentence enhancements. Id. at 1089. As we explained

in Howard, the party seeking an adjustment bears the burden

UNITED STATES v. AMELINE 6371
of proof. Id. Thus, when the defendant requests a downward

adjustment, the defendant bears the burden of proof; when the

government seeks an upward adjustment, it bears the burden

of proof. Id. Here, the district court also erred by placing the

burden of proof on the defendant to disprove the upward

adjustment recommended in the PSR and sought by the government. 

The fact that the Sentencing Guidelines have become discretionary following Booker does not alter this analysis. The

district court’s factual findings will determine the base

offense level, which remains the starting point for determining the applicable guideline range for an offense under 21

U.S.C. § 841(a)(1). See U.S.S.G. § 2D1.1(c). When a defendant contests the factual basis of a PSR, the district court

remains obligated to resolve the dispute before exercising its

sentencing discretion under Booker. In resolving the factual

dispute, the district court must continue to apply the appropriate burdens of proof, consistent with Howard. 

VI.

Conclusion

We adopt the limited remand procedure articulated by the

Second Circuit in Crosby to assess the existence of plain error

in pre-Booker sentencing appeals. 

[14] In this case, remand is also required to address the district court’s error in misallocating the burden of proof at sentencing, in light of the presentation of evidence by Ameline

challenging the drug amounts recommended in the PSR. To

correct the Howard error, the district court must hold a new

sentencing hearing in accordance with Federal Rule of Criminal Procedure 32(i). Accordingly, we vacate the sentence and

remand for further proceedings consistent with this opinion.

SENTENCE VACATED and REMANDED.

6372 UNITED STATES v. AMELINE
WARDLAW, Circuit Judge, with whom GOULD, Circuit

Judge, joins, and with whom O’SCANNLAIN and BEA, Circuit Judges, join with respect to Part I, concurring in part and

dissenting in part: 

The district court erred by treating the factual statements in

the Presentence Report as presumptively accurate and placing

the burden on Ameline to disprove them. See United States v.

Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). I therefore

concur in the majority’s decision to vacate Ameline’s sentence and to remand his case for a new sentencing hearing

pursuant to Federal Rule of Criminal Procedure 32. I respectfully dissent, however, from the majority opinion because it

improperly delegates to the district courts our discretionary

appellate function to conduct plain error review of unpreserved claims of Booker error. The resulting wholesale

remand of hundreds, possibly thousands, of sentencing

appeals elevates our administrative concerns over the law as

pronounced by the Supreme Court in United States v. Booker,

125 S. Ct. 738 (2005), and over the interests of individual justice. 

I.

Flaws in the Majority’s “Limited Remand” Approach

The majority accurately characterizes the Booker error. A

constitutional infirmity arises only where a defendant’s sentence is enhanced under a mandatory Guidelines system as a

result of factual findings made by the sentencing judge

beyond the facts admitted to by the defendant or found by a

jury. The majority is also correct that, after Booker, such an

error is plain. But those are only the first two prongs of the

plain error test. We must also determine whether the plain

error affected the defendant’s “substantial rights.” United

States v. Cotton, 535 U.S. 625, 631 (2002). If this third prong

is met, we may then exercise our discretion to notice the forfeited error, but only if the “error seriously affect[s] the fairUNITED STATES v. AMELINE 6373
ness, integrity, or public reputation of judicial proceedings.”

Id. (quotations omitted). 

Neither party to this litigation urged us to adopt the Second

Circuit’s Crosby approach, which relegates to the district

courts the determination of the third and fourth prongs of

plain error review. See United States v. Crosby, 397 F.3d 103

(2d Cir. 2005). Indeed, both parties advocated against our

adoption of Crosby. Yet, after examining the analyses of our

sister circuits, the majority selects Crosby for the reason that

it is a “practical,” “short,” “easy,” “quick,” and “sure” way to

dispose of unpreserved claims of Booker error. I agree that the

majority’s approach is “short,” “quick,” and “easy,” at least

for our court. It relieves our docket of “literally thousands of

cases” (in the government’s words). It relieves us of our obligation to review each of those cases individually. It permanently disposes of at least some portion of those cases, such

as where a defendant will have already served his unconstitutional sentence by the time the district courts, with their own

heavy dockets, absorb the avalanche of simultaneous remands

and are able to make the time to decide whether or not to

resentence. We will have removed several appeals from our

own crowded docket by requiring the district courts to further

crowd theirs, as they do our job. Although the burden-shifting

approach the majority arrives upon may be “short,” “easy,”

and “quick,” it is neither correct nor just. 

The majority’s delegation of the third and fourth prongs of

plain error review to the district courts has several flaws: (1)

it contradicts what the Supreme Court said and did in Booker;

(2) it abdicates our obligation as a reviewing court to conduct

plain error review; (3) the question it poses for the district

courts is not an accurate inquiry under the prejudice prong of

plain error review; (4) it fails to make provision for the number of district judges who have left the bench or who have

become otherwise incapacitated since imposing the unconstitutional sentences under review, and who, therefore, are inca6374 UNITED STATES v. AMELINE
pable of answering its question; and (5) any efficiencies that

it purportedly promises will prove illusory. 

1. Booker

The majority’s approach is at odds with what the Supreme

Court said and did in Booker. There, the Court instructed “reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and

whether it fails the ‘plain-error’ test.” Booker, 125 S. Ct. at

769 (emphasis added). The Court directed appellate courts to

fulfill their review function, and did not even hint that delegating that function to the district courts might be appropriate.

“The Supreme Court phrased its instructions to reviewing

courts in terms of what has long been accepted practice in the

federal courts and did not suggest that this accepted practice

must change in the wake of Booker.” United States v. Milan,

398 F.3d 445, 454 (6th Cir. 2005).1

The majority’s approach also conflicts with what the

Supreme Court did in Booker. The Court reviewed Booker’s

case and found that the district court “imposed a sentence

higher than the maximum authorized solely by the jury’s verdict,” a Sixth Amendment violation. Booker, 125 S. Ct. at

769. The Court remanded the case for resentencing, ordering

that “[o]n remand, the District Court should impose a sentence in accordance with today’s opinions, and, if the sentence comes before the Court of Appeals for review, the Court

of Appeals should apply the standards set forth in this opinion.” Id. The Court saw no need to ask the district court to

determine in the first instance whether resentencing was war1Since Booker, the Supreme Court has vacated every one of our judgments that touches upon a Booker issue and remanded them for “further

consideration in light of [Booker].” See, e.g., Alizondo v. United States,

125 S. Ct. 1000 (2005). It has not remanded them with instructions to

remand to the district courts for participation in the appellate review function. 

UNITED STATES v. AMELINE 6375
ranted. It thus made clear that appellate courts should review

an unpreserved claim of Booker error for whether it is plain

error, and remand for resentencing in appropriate cases. Nor

did the Court incorporate the remedial portion of its decision

into the question of whether there was error—i.e., it did not

ask whether the sentence would have been different under

advisory Guidelines, reviewing the error in Booker’s case

without regard to its contemporaneous announcement that the

Guidelines were advisory. 

The significance of the Supreme Court’s decision to

remand in Booker is not undermined by the government’s

failure to argue plain error principles in that case. According

to the majority, because the government had waived the argument that Booker’s appeal was governed by the plain error

standard of review, Booker provides no guidance for assessing unpreserved claims of Booker error. The majority’s

refusal to turn to Booker for guidance, however, disregards

our law that to vacate and remand a sentence requires some

determination of prejudice whether or not the issue is preserved; plain error principles change only the identity of the

party who bears the burden of persuasion. See United States

v. Olano, 507 U.S. 725, 734 (1993) (substantial rights prong

of plain error analysis mirrors harmless error analysis but

shifts the burden of persuasion with respect to prejudice to the

defendant). Inherent in the Court’s decision to remand

Booker’s case for resentencing is necessarily a decision that

the error in his case was prejudicial, i.e., was not harmless and

affected Booker’s substantial rights. See Fed. R. Crim. P.

52(a) (“Any error . . . that does not affect substantial rights

must be disregarded.”). If the Court had not found the Booker

error to be prejudicial, it could not have found that error to

properly form the basis for vacating and remanding for resentencing. 

Nor did the Court find any impediment to reversing Fanfan’s sentence and allowing “the Government (and Fanfan

should he so choose) [to] seek resentencing under the system

6376 UNITED STATES v. AMELINE
set forth in [Booker].” Booker, 125 S. Ct. at 769. In Fanfan’s

case, the district court imposed a sentence lower than the sentence authorized by the jury’s verdict and thus lower than

what the then-mandatory Guidelines dictated. The Court

understood that resentencing might be an undesirable option

for Fanfan, as he risked the imposition of a higher sentence.

Nevertheless, it readily permitted a remand for a full resentencing, even in the absence of a Sixth Amendment violation.

Id.

2. Abdication of Our Appellate Review Function

Although the majority labels its approach a “limited

remand,” the approach is in fact an abdication of our appellate

review function. “We have used the term ‘limited remand’ to

describe a remand to the district court for proceedings prior

to this court’s consideration of the merits of an appeal.”

United States v. Washington, 172 F.3d 1116, 1118 (9th Cir.

1999) (emphasis added). Under the majority’s approach, the

district court conducts the third and fourth prongs of plain

error review, resentences if it deems necessary, and reenters

judgment. If a notice of appeal is filed, that judgment may

become the subject of a new appeal, but our consideration of

the merits of the defendant’s original appeal is eliminated.

Contrary to the majority’s asserted reason for the remand—

“to permit the sentencing judge to inform the reviewing

court’s analysis” of the third prong of plain error review, ante

at 6360—the sentencing judge is under no obligation to actually inform us as to whether he “would have imposed a materially different sentence had he been aware of the nowadvisory nature of the sentencing guidelines.” Ante at 6360.

Nor do we retain jurisdiction of the case. As a result, we will

never make an informed appellate decision as to whether the

Booker error affected the defendant’s original sentencing proceeding, and the fourth, discretionary, decision with which we

are charged under plain error review simply vanishes. Therefore, despite its best effort to make it appear otherwise, the

UNITED STATES v. AMELINE 6377
majority is simply relinquishing to the district courts the last

two prongs of plain error review. 

As part of its efforts to justify its abdication of our appellate review function, the majority discusses at length several

ways in which district judges create “potentially misleading

records.” Whether or not district judges create “potentially

misleading records,” it is a fact of life that appellate courts

must review cold records; that’s their job and the argument is

no justification for abandoning that important work. This

argument also conflicts with the majority’s description of

“The Process to be Followed,” which requires that a threejudge panel review the entire “potentially misleading” record

before ordering a “limited remand.” Only “[i]f that analysis

leads to the same dead end that [the majority] reach[es] here,

where it is not possible to reliably determine from the record

whether the sentence imposed would have been materially

different” under the now-advisory Guidelines, ante at 6369,

may the panel issue a “limited remand.” The majority never

describes at what point a panel may reach a “dead end,” or

when it will be impossible for a panel “to reliably determine”

“whether the sentence imposed would have been materially

different” under the now-advisory Guidelines. Ante at 6369.

Unbelievably, the majority, acting in haste to dispose of

unpreserved claims of Booker error, has left wide open the

nature and extent of review in which any subsequent panel

should engage before ordering a “limited remand.”

2

2Under the majority’s analysis, panels of our court remain free to review

the record, apply the proper prejudice inquiry, find that prejudice exists,

and remand for resentencing. The majority emphasizes that “the limited

remand is invoked only when it cannot be determined from the record

whether the judge would have imposed a materially different sentence had

he known that the Guidelines are advisory rather than mandatory.” Ante

at 6366. The majority continues, stating that “[o]nly after determining that

the record did not sufficiently inform the reviewing court’s analysis,” is

the “limited remand” triggered. Ante at 6367. This appears to leave open

the process utilized by the Eleventh Circuit in United States v. Rodriguez,

398 F.3d 1291, 1301 (11th Cir. 2005), where if the district judge openly

indicated that he would not have imposed the sentence he did but for the

mandatory Guidelines, then prejudice is found. 

6378 UNITED STATES v. AMELINE
The majority also ignores our precedents that demonstrate

that the limited remand device is used not to assign our traditional review function to the district court, but to elicit the district court’s decision on a question it earlier missed, or to

permit the district court to engage in its own traditional factfinding function. In United States v. Gunning, 339 F.3d 948

(9th Cir. 2003) (per curiam), cited by the majority, Gunning

argued that he was entitled to a two-level minor role adjustment under U.S.S.G. § 3B1.2(b). The district court made no

findings regarding the adjustment. “Because it is for the district court to rule on sentencing issues in the first instance,”

we remanded for the court to make additional findings and to

resentence if necessary. Id. at 949. We did not remand to the

district court to allow it to determine whether it had committed a legal error in sentencing in the first place. Therefore, the

majority’s reliance on Gunning in support of its novel

approach to plain error review is inapposite. 

Similarly, in United States v. Hovsepian, 359 F.3d 1144

(9th Cir. 2004), we held that because the district court did not

consider appellees’ convictions or their possible affiliations

with terrorist groups, the court failed to undertake a complete

analysis of their naturalization applications. Id. at 1168. We

remanded the case to the district court for additional factfinding—a task well within the traditional province of district

courts, see Fed. R. Civ. P. 52(a)—not for a determination of

whether the district court committed legal error. Id. at 1169.

To the contrary: We not only retained jurisdiction over the

appeal, we further ordered: 

Within 120 days of the issuance of the mandate, or

such further time as this court may allow, the district

court shall forward its additional findings of fact and

conclusions of law to this court, with copies to the

parties, so that we may review the district court’s

assessment of all the relevant facts in reaching a

final disposition. Within 30 days after the district

court forwards its findings and conclusions, any

UNITED STATES v. AMELINE 6379
party may request this court’s further review of the

naturalization issue. 

Id. (first emphasis added). 

The majority cites no Supreme Court authority to support

its delegation of the last two prongs of plain error review to

the discretion of the district courts. Nor can it, because review

for error, plain or otherwise, is an exclusive function of appellate courts. Booker itself makes this clear, as do a host of

other Supreme Court decisions. See United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004) (a defendant who

seeks reversal on the ground that the district court committed

plain error must satisfy the judgment of the “reviewing court”

that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding); United

States v. Vonn, 535 U.S. 55, 59 (2002) (a “reviewing court”

must consider the effect of any error on substantial rights);

Kotteakos v. United States, 328 U.S. 750, 763-64 (1946) (in

deciding the prejudice prong of plain error, “appellate courts”

must consider what effect the error had or reasonably may

have had upon the outcome of the proceedings). As the Eleventh Circuit has recognized, “[t]he determination of plain

error is the duty of courts of appeal, not district courts.”

Rodriguez, 398 F.3d at 1305; see also United States v. Mares,

402 F.3d 511, 522 (5th Cir. 2005) (“[W]e find no support for

[the Crosby approach] in the Supreme Court plain error cases.

Those cases place the obligation on the appellate courts—

rather than the district courts—to determine the third prong of

the plain error test.”). 

The majority’s misreading of 18 U.S.C. § 3742(f) leads it

to adopt the Second Circuit’s erroneous rationale that “the

power to remand for resentencing [under § 3742(f)] necessarily encompasses the lesser power to order a limited remand.”

Section 3742 governs appellate review of criminal sentences.

As Justice Scalia noted in Booker: “Even the most casual

reading of this section discloses that its purpose—its only

6380 UNITED STATES v. AMELINE
purpose—is to enable courts of appeals to enforce conformity

with the Guidelines.” Booker, 125 S. Ct. at 791 (Scalia, J., dissenting).3

 Thus, § 3742 imposes an obligation on appellate

courts to review district courts’ sentencing decisions. The

majority misuses § 3742 by drawing an inference from that

section, which was designed to curtail district courts’ discretion,4

 to support relinquishing to district courts our appellate

review function. 

The plain language of § 3742 demonstrates that it cannot

carry the weight the majority assigns to it. Section 3742(f)

provides, in pertinent part:

3The continued viability of § 3742(f) itself is subject to question. As

Justice Scalia wrote in Booker: 

If the Guidelines are no longer binding, one would think that the

provision designed to ensure compliance with them would, in its

totality, be inoperative. The Court holds otherwise. Like a blackrobed Alexander cutting the Gordian knot, it simply severs the

purpose of the review provisions from their text, holding that

only subsection (e), which sets forth the determinations that the

court of appeals must make, is inoperative, whereas all the rest

of § 3742 subsists—including, mirabile dictu, subsection (f),

entitled “Decision and disposition,” which tracks the determinations required by the severed subsection (e) and specifies what

disposition each of those determinations is to produce. This is

rather like deleting the ingredients portion of a recipe and telling

the cook to proceed with the preparation portion. 

Id. 

4To further constrain the exercise of discretion by district courts, appellate review of district courts’ sentencing decisions was broadened by the

Prosecutorial Remedies and Tools Against the Exploitation of Children

Today Act of 2003 (“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650

(2003). See Booker, 125 S. Ct. at 786-87 (Stevens, J., dissenting)

(“Congress has rejected each and every attempt to . . . vest judges with

more sentencing options. . . . Most recently, Congress’ passage of the

[PROTECT Act] reinforced the mandatory nature of the Guidelines by

expanding de novo review of sentences to include all departures from the

Guidelines . . . .”). 

UNITED STATES v. AMELINE 6381
If the court of appeals determines that— 

(1) the sentence was imposed in violation of law or

imposed as a result of an incorrect application of the

sentencing guidelines, the court shall remand the

case for further sentencing proceedings with such

instructions as the court considers appropriate. 

18 U.S.C. § 3742(f)(1). This section mandates that “the court

of appeals” make the determination that the sentence “was

imposed in violation of the law.” Id. The majority instead

invites the district courts—the very courts whose decisions

are under review—to participate in the predicate finding of

legal error. Sending the third and fourth prongs of the plain

error determination to the district court abrogates the very

obligation of appellate review that § 3742(f) mandates. Ordering a “limited remand” is not a lesser power inherent in

§ 3742(f); it is an entirely different remedy that conflicts with

congressional directives as to the review and disposition of

sentencing appeals. 

The Eleventh Circuit has also found illogic in the Second

Circuit’s—and now our own—reasoning that, because

§ 3742(f) authorizes remands for resentencing to remedy a

sentence imposed in error, appellate courts necessarily have

the “lesser” power to remand for a determination of whether

the original sentence was contrary to law:

That conclusion does not follow at all. In cases of

non-preserved error appellate courts lack the authority to remand for resentencing where the requirements of the plain error rule have not been met. The

remands being ordered are not, as Crosby suggests,

for the purpose of determining “whether to resentence,” but for the purpose of determining whether

the third prong of the plain error test has been met

so that the unpreserved error may be noticed and the

appealed sentence vacated. Neither § 3742(f) nor any

6382 UNITED STATES v. AMELINE
other part of the Sentencing Reform Act purports to

give appellate courts the authority to delegate the

decision of whether there has been plain error to the

very court whose judgment is being reviewed.

Rodriguez, 398 F.3d at 1306 (emphasis added). 

By characterizing its approach as a “sure” and “certain”

way to determine prejudice, the majority demonstrates its

misapprehension of the correct standard for determining

whether Booker error affected a defendant’s substantial rights.

As the Supreme Court most recently stated in Dominguez

Benitez, to meet the third prong of the plain error test, “[a]

defendant must . . . satisfy the judgment of the reviewing

court, informed by the entire record, 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 (quotations and citations omitted). Applying this prejudice test to Booker error, the correct inquiry is whether a reasonable probability exists that, but for the Booker error, the

outcome of the defendant’s sentencing proceeding would

have been different so as to undermine our confidence in the

sentence. Kotteakos, 328 U.S. at 764 (a reviewing court must

determine “what effect the error had or reasonably may be

taken to have had upon the outcome of the proceedings”

(emphasis added)). 

The majority’s failure to grasp that the inquiry is objective,

rather than subjective, leads to its notion that it is appropriate

“to ask the sentencing judge.” The majority clings to its erroneous view of the prejudice inquiry to defend the “limited

remand” procedure as merely a last resort, after the appellate

panel cannot find the answer to whether the district judge

“would have imposed a materially different sentence” had the

Guidelines been advisory. But that is an irrelevant question

under the prejudice inquiry and invites the district judge himself to speculate about what he would have done in a different

world. It is doubtful that most judges will even recall the cirUNITED STATES v. AMELINE 6383
cumstances of every sentencing hearing over which they have

presided since Apprendi v. New Jersey, 530 U.S. 466 (2000).

As appellate judges, we can and should objectively determine,

based on a review of the record, whether it is reasonably probable that the defendant’s sentence would have been different

but for the Booker error. We do not need, nor is it appropriate

to obtain, the subjective views of the sentencing judge.

Because the inquiry is not subjective, the views of the sentencing judge are irrelevant. See United States v. Hughes, 401

F.3d 540, 551 (4th Cir. 2005) (“[T]he proper focus is on what

actually happened as a result of the error, not what might happen in a subsequent proceeding on remand.”). 

3. Sentencing Post-Booker

Even if the majority could cite any legal precedent supporting its approach, the abbreviated sentencing determination it

requires of the district court is not a substitute for the sentencing proceeding required after Booker. In the post-Booker

world, district courts must consider the factors provided in 18

U.S.C. § 3553(a) in fashioning the appropriate sentence for

the individual defendant. As stated by Justice Breyer in his

remedial opinion for the Court:

Without the “mandatory” provision, the [Sentencing

Reform Act] nonetheless requires judges to take

account of the Guidelines together with other sentencing goals. See 18 U.S.C.A. § 3553(a) (Supp.

2004). The Act nonetheless requires judges to consider the Guidelines “sentencing range established

. . . for the applicable category of offense committed

by the applicable category of defendant,”

§ 3553(a)(4), the pertinent Sentencing Commission

policy statements, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1), (3), (5)-(7) (main

ed. and Supp. 2004). And the Act nonetheless

requires judges to impose sentences that reflect the

6384 UNITED STATES v. AMELINE
seriousness of the offense, promote respect for the

law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the

defendant with the needed educational or vocational

training and medical care. § 3553(a)(2) (main ed.

and Supp. 2004).

Booker, 125 S. Ct. at 764-65. 

District courts now also have the discretion to weigh a multitude of mitigating and aggravating factors that existed at the

time of mandatory Guidelines sentencing, but were deemed

“not ordinarily relevant,” such as age, education and vocational skills, mental and emotional conditions, employment

record, and family ties and responsibilities. See U.S.S.G.

§ 5H1.1-6; see also Koon v. United States, 518 U.S. 81, 95

(1996) (“Discouraged factors . . . are those not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range. Examples include the

defendant’s family ties and responsibilities, his or her educational and vocational skills, and his or her military, civic,

charitable, or public service record.” (quotations and citations

omitted)). Indeed, district courts may even consider factors

that were precluded from consideration altogether prior to

Booker, such as drug and alcohol dependence, lack of guidance as a youth, and personal financial difficulties and economic pressures. See U.S.S.G. §§ 5H1.4, 5H1.12, and

5K2.12; see also Koon, 518 U.S. at 95 (“The Commission

lists certain factors that never can be bases for departure,

[such as] lack of guidance as a youth; drug or alcohol dependence; and economic hardship . . . .” (citations omitted)). 

The majority leaves open the possibility that these factors

—now essential to sentencing consistent with 18 U.S.C.

§ 3553(a) and its directive that the sentence be “sufficient but

not greater than necessary to comply with the purposes of

sentencing”—might come to light in a sentencing hearing, but

it does not require that a district court hold a hearing before

UNITED STATES v. AMELINE 6385
deciding against resentencing the defendant. Indeed, “[i]n all

too many instances, the process scripted by the [majority] will

serve as an invitation for [a] district court to give only a

superficial look at [an] earlier unconstitutionally[ ] imposed

sentence.” United States v. Paladino, 401 F.3d 471, 486 (7th

Cir. 2005) (Ripple, J., dissenting from denial of rehearing en

banc). Because under the majority’s approach the appellate

court will not perform plain error review, such a “quick look”

sentencing decision would be subject only to the lesser “reasonableness” standard of review. 

Defendants should be accorded the benefit of the complete

discretion district courts now enjoy. They should have the

opportunity to be heard on § 3553 and its newly relevant factors. Briefs of counsel are not a substitute for testimony, evidence, and argument. The majority fails to explain how,

without an evidentiary hearing and briefing tantamount to

resentencing by normal vacatur and remand procedures, a district judge could ever accurately answer the question as to

whether he would have imposed a materially different sentence had he known that the Guidelines were advisory. 

For example, Ameline’s trial counsel made the strategic

decision to focus on drug quantity and gun possession at

Ameline’s sentencing hearing because only those factors

could have significantly decreased Ameline’s offense level

under the mandatory Guidelines. By contesting drug quantity

and gun possession, Ameline potentially could have reduced

his sentence by over 10 years because the drug quantity and

gun possession determinations fixed the range within which

Ameline was sentenced. By contrast, evidence as to Ameline’s “background, character and conduct,” see U.S.S.G.

§ 1B1.4, could have only affected the point within the Guidelines range at which Ameline would be sentenced. After

Booker, however, a defendant’s “background, character and

conduct” are the very factors that might convince a judge to

exercise his discretion to disregard the advisory Guidelines

range, but only if, upon plain error review, we notice the

6386 UNITED STATES v. AMELINE
error, vacate the defendant’s sentence, and remand for resentencing. “In short, what the panel substitutes for the usual

judicial reaction to an unconstitutionally[ ] imposed sentence

is a process that simply is inadequate to the task.” Paladino,

401 F.3d at 486 (Ripple, J., dissenting from denial of rehearing en banc). 

UNITED STATES v. AMELINE 6387
Volume 2 of 2

UNITED STATES v. AMELINE 6389
4. Practical Problems

Chief among the practical problems presented by the

majority’s approach is that it fails to account for the fact that

several district judges have retired, become disabled, or

passed away since imposing the unconstitutional sentences

currently under review. The recent retirement of the Honorable Lourdes G. Baird from the United States District Court

for the Central District of California to become a private

mediator is but one of many examples. See The Third Branch,

Judicial Milestones, Vol. 37, Number 4 (April 2005), available at http://www.uscourts.gov (last visited May 1, 2004). A

glaring imperfection in the majority’s “quick” and “easy”

approach is: What happens when we cannot “ask the sentencing judge?” The answer is that the Chief Judge of the district

court will reassign the remanded case to a currently serving

judge who cannot possibly answer the question the majority

poses because he was not the original sentencing judge. The

new sentencing judge will face additional practical problems

in resolving how to handle the case. This will necessarily

result in inconsistent applications of sentencing law, which

will likely generate future due process and equal protection

claims. 

5. Illusory Efficiencies

The obvious attractiveness of the Crosby approach inheres

in its purported efficiencies. As a reviewing court, however,

our obligations under the Constitution are not always measured against a metric of efficiency or administrative convenience. See, e.g., Blakely v. Washington, 124 S. Ct. 2531,

2543 (2004) (“[O]ur decision cannot turn on whether or to

what degree trial by jury impairs the efficiency . . . of criminal

justice.”); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,

490 (1951) (“Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial

function.”). As the Supreme Court cautioned in Booker itself,

“ ‘delays, and little inconveniences in the forms of justice, are

6390 UNITED STATES v. AMELINE
the price that all free nations must pay for their liberty in more

substantial matters.’ ” Booker, 125 S. Ct. at 756 (quoting 4

Commentaries on the Laws of England 343-44 (1769)). In

light of the important constitutional rights at issue, the minimal burdens that accompany individualized review of

unpreserved claims of Booker error are worth bearing. 

Moreover, any efficiency that the majority’s approach may

seemingly promise is likely to prove illusory. If a district

judge chooses on remand not to resentence a defendant, we

may be required to review the standing sentence for reasonableness. Review for “reasonableness” is not limited to consideration of the length of the sentence. Instead, the Booker

Court instructed appellate courts, in determining reasonableness, to consider not only the length of the sentence but also

the factors evaluated and the procedures employed by the district court. See Booker, 125 S. Ct. at 765-66; see also United

States v. Webb, 403 F.3d 373, 382-83 (6th Cir. 2005) (after

Booker appellate courts should “consider not only the length

of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing

determination”). Ultimately, we may conclude that a sentence

is unreasonable when the sentencing judge fails to explicitly

consider the factors listed in 18 U.S.C. § 3553(a), or neglects

to consult the applicable Guidelines range, and instead selects

what he deems an appropriate sentence without such required

consideration. In cases where a district judge elects not to

hold a hearing before deciding not to resentence,5 however, it

5Decisions in the aftermath of the Second Circuit’s Crosby decision

prove that district courts will elect not to hold hearings before deciding not

to resentence. In one case, for example, a district judge for the Southern

District of New York denied a defendant’s request for a hearing, stating:

Crosby provides specific guidance to the District Courts of this

Circuit concerning cases remanded for possible re-sentencing. In

deciding whether a defendant should be re-sentenced, the District

Court should obtain the views of counsel, at least in writing, but

need not require the presence of the Defendant. Moreover, the

UNITED STATES v. AMELINE 6391
will be impossible for us to conduct a reasonableness review,

for the judge’s “appropriate explanation” for his decision not

to resentence cannot replace the insight into the factors evaluated and the procedures employed by the judge that a transcript of a sentencing hearing would provide. This is

especially true in light of the majority’s failure to discuss

what would be an “appropriate explanation.” See Paladino,

401 F.3d at 488 (Kanne, J., dissenting from denial of rehearing en banc) (“The record in the case in which there was no

resentencing (or hearing on the issue) will be impossible for

us to review for reasonableness, if reasonableness is to be

determined with regard to all of . . . ‘the numerous factors that

guide sentencing.’ ” (quoting Booker, 125 S. Ct. at 765-66)).

In addition to hindering our ability to review reimposed

sentences for “reasonableness,” the majority opens our docket

to countless arguments that would be precluded if we had performed an individualized analysis. If we were to determine

under an individualized analysis that a particular defendant

did not meet his burden under the plain error standard, the

case would not be remanded to the district court and there

would be no second appeal. If we were to determine otherwise, the defendant’s sentence would be vacated and his case

remanded for a full resentencing. However, because the

defendant would be entitled to all the procedures that accompany a full resentencing, such as the opportunity to “present

all available accurate information bearing on mitigation of

punishment,” see United States v. Mack, 200 F.3d 653, 658

(9th Cir. 2000), the only issue on appeal likely would be the

question of whether to re-sentence may be resolved with or without a hearing. Accordingly, defense counsel’s current request for

a conference is DENIED. The parties are directed to file any written submissions concerning the possible re-sentencing of defendant by May 15, 2005. 

United States v. Jasper, 2005 WL 774519 (S.D.N.Y. April 6, 2005) (citations and quotations omitted). 

6392 UNITED STATES v. AMELINE
“reasonableness” of the defendant’s new sentence. By contrast, under the majority’s approach, if a district court elects

not to hold a hearing before deciding to reimpose the preBooker sentence, the defendant could raise a host of claims in

addition to the reasonableness of his sentence, such as the district court’s failure to consider the factors set forth in 18

U.S.C. § 3553(a), and its violation of his right to allocution.

Therefore, while at first blush it may be enticing to an overworked and overscrutinized bench to rid ourselves of hundreds, perhaps thousands, of appeals, we may create much

more work for ourselves down the road than if we had simply

done it right in the first place. The Eleventh Circuit accurately

describes Crosby as “requiring resentencing in order to determine whether resentencing is required.”

6 Rodriguez, 398 F.3d

at 1305. It correctly observes that the Crosby procedure “undermines the Supreme Court’s teaching that one of the principal purposes of the plain error rule is to avoid needless

reversals and remands.” Id. By adopting Crosby, the majority

creates “the real possibility of another appeal and another

remand on top of that.” Id.

One of the reasons for plain error review is to reduce the

burden on the judicial system. See Johnson v. United States,

520 U.S. 461, 468 (1997). The majority’s approach will necessarily increase the workload of courts, first, at the district

court level, and then, inevitably, at the appellate level. The

better approach is to review these appeals as the Supreme

Court instructed and as our appellate duty requires.

6The Second Circuit has responded to this criticism by stating that

“[t]he remand is for a determination of whether the original sentence

would have been materially different, and only in that event does the

remand lead to resentencing.” United States v. Williams, 399 F.3d 450,

461 (2d Cir. 2005) (emphasis in original). This response misses the point,

for the inquiry into whether the original sentence would have been “materially different” necessarily involves consideration of what sentence the

district court would apply if it were to resentence under the advisory

Guidelines. 

UNITED STATES v. AMELINE 6393
II.

Individualized Review of Unpreserved Claims of

Booker Error

Where the majority and I part company is with respect to

the third and fourth prongs of the plain error test. The majority improperly delegates to the district courts the tasks of

determining whether Booker error affected defendants’ substantial rights, and whether to notice the forfeited error. As the

First, Fifth, and Eleventh Circuits have held, however, we

must analyze these aspects of plain error at the appellate level

by reviewing the entire record of the sentencing proceedings.

See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st

Cir. 2005); Mares, 402 F.3d at 522; Rodriguez, 398 F.3d at

1304. 

1. “Substantial Rights”

For an error to affect “substantial rights,” “the error must

have been prejudicial: It must have affected the outcome of

the district court proceedings.” Olano, 507 U.S. at 734. “It is

the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. 

The Supreme Court has articulated several different formulations of a defendant’s burden under the substantial rights

test. See Dominguez Benitez, 124 S. Ct. at 2342 (Scalia, J. dissenting) (“By my count, this Court has adopted no fewer than

four assertedly different standards of probability relating to

the assessment of whether the outcome of trial would have

been different if error had not occurred, or if omitted evidence

had been included.”). Most recently, in the context of a Rule

11 violation, the Court explained that a defendant “must show

a reasonable probability that, but for the error, he would not

have entered the plea.” Id. at 2339. More generally, the Court

stated:

6394 UNITED STATES v. AMELINE
A defendant must thus satisfy the judgment of the

reviewing court, informed by the entire record, that

the probability of a different result is sufficient to

undermine confidence in the outcome of the proceeding. 

Id. at 2340 (quotations and citations omitted). 

Applying this prejudice test to Booker error, we must determine whether there is a reasonable probability that, but for

the Booker error, the outcome of the defendant’s sentencing

proceeding would have been different so as to undermine our

confidence in the sentence. Because the Booker Court held

that an enhancement based on judge-found facts would not

have implicated a constitutional violation if the Guidelines

were advisory rather than mandatory, Booker, 125 S. Ct. at

750, in determining the prejudicial effect of the Booker error,

we must focus upon the mandatory nature of the system under

which the district judge enhanced the defendant’s sentence

rather than upon the use of judge-found facts in sentencing.

See Rodriguez, 398 F.3d at 1303 (“The prejudice inquiry must

focus on what has to be changed to remedy the error.”). 

We must also consider the profound impact of the Supreme

Court’s decision in Booker on federal sentencing, because the

nature of the error may affect the application of the substantial

rights prong. See Olano, 507 U.S. at 735. To understand the

transforming nature of Booker, it helps to consider the nature

of sentencing proceedings before the implementation of the

mandatory federal Guidelines in 1987, which drastically

altered the practice of sentencing in the federal criminal justice system. 

Before the Guidelines were implemented, Congress had

delegated virtually “unfettered discretion to the sentencing

judge to determine what the sentence should be within the

customarily wide range” of potential sentences prescribed by

statute. Mistretta v. United States, 488 U.S. 361 (1989). The

UNITED STATES v. AMELINE 6395
role of probation officers was to facilitate, rather than to circumscribe, judicial discretion. To this end, the primary purpose of the presentence report was to “ ‘aid the court in

determining the appropriate sentence,’ ” and included “ ‘[a]n

assessment of the problems of the defendant and a consideration for the safety of the community.’ ” Kate Stith and José

A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 NW U. L. Rev. 1247, 1250 (1997) (quoting Probation Div. Admin. Office of the U.S. Courts, Pub. No. 105, The

Presentence Investigation Report 1 (1987)). The presentence

report suggested a particular term of imprisonment, based on

national sentencing statistics and the officer’s informed judgment, but the role of the probation officer in sentencing was

purely advisory. See id. at 1251. The sentencing judge could

make use of the information in the presentence report or disregard it; the judge had complete discretion to balance the “various goals of sentencing, the relevant aggravating and

mitigating circumstances, and the way in which these factors

would be combined in determining a specific sentence.”

United States Sentencing Commission, Report to Congress:

Downward Departures From the Federal Sentencing Guidelines, I, B-1 (2003) (quotations and citation omitted). The sentencing judge was free to impose a sentence anywhere within

the statutory range, and could usually replace imprisonment

with probation, if he so chose. See Mistretta, 488 U.S. at 365.

Finally, judicial discretion was “unfettered” primarily because

appellate review of the district judge’s discretion was virtually

non-existent. See Dorszynski v. United States, 418 U.S. 424,

431 (1974) (“[O]nce it is determined that a sentence is within

the limitations set forth in the statute under which it is

imposed, appellate review is at an end.”). Judicial sentences

that fell within the prescribed range “were virtually unreviewable on appeal.” Mistretta, 488 U.S. at 363. 

Booker is a signal event in the development of the law. It

restored the complete discretion of sentencing judges to sentence anywhere within the statutory range, so long as the sentence is tethered to the congressional goals of sentencing set

6396 UNITED STATES v. AMELINE
forth in 18 U.S.C. § 3553(a). As the D.C. Circuit recently

stated, a sentencing court will have “committed no error . . .

so long as the sentence was within the prescribed statutory

range and is otherwise reasonable.” United States v. Coles,

403 F.3d 764, 768-69 (D.C. Cir. 2005). Similarly, the Fourth

Circuit, concluding that the district court engaged in “careful

deliberation,” held in a recent case that “because the district

court sentenced [the defendant] within the statutory guidelines

. . . we are of opinion [that] the sentence . . . is reasonable.”

United States v. Bartram, ___ F.3d ___, 2005 WL 994828 *4

(4th Cir. April 29, 2005). Moreover, the Sixth Circuit, also

reviewing a sentence for post-Booker reasonableness, has

adopted an abuse of discretion standard, thereby explicitly

reverting to the standard applicable in the pre-Guidelines era.

See United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir.

2005) (stating that Booker “extended unreasonableness—the

pre-PROTECT Act standard for reviewing departure

sentences—to the review of all sentences,” and proceeding to

review the district court’s sentencing decision for abuse of

discretion). 

Given that we have reverted to a sentencing system very

close to that which existed before the Guidelines, it would be

fundamentally unfair to require that a defendant demonstrate

with 100 percent certainty that the district judge would have

sentenced him differently. Rather, the relaxed inquiry of

Dominguez Benitez is appropriate: we should determine

whether there is a reasonable probability that, but for the

Booker error, the outcome of the defendant’s sentencing proceeding would have been different so as to undermine our

confidence in the sentence. 

Ameline, himself, has met this burden. Setting aside the

Howard error, the Booker error so infected Ameline’s sentencing hearing that Ameline’s burden of showing a reasonable probability that without the judicial fact-finding and

mandatory enhancements there would have been a different

sentence is easily met. We need not seek the district court’s

UNITED STATES v. AMELINE 6397
guidance as to whether the Booker error affected Ameline’s

substantial rights. In Ameline’s case, the sentencing judge

made factual findings by a preponderance of the evidence and

mandatorily enhanced Ameline’s sentence above the Guidelines range applicable to the facts as admitted by Ameline in

his plea agreement. Moreover, Ameline was sentenced under

an unconstitutional mandatory scheme that forbade the exercise of the full measure of discretion that, after Booker, should

be accorded to sentencing judges. And, due to the mandatory

nature of the Guidelines when Ameline was sentenced, the

district judge was precluded from complying with 18 U.S.C.

§ 3553(a)’s directive to “impose a sentence sufficient, but not

greater than necessary,” to comply with the statutory purposes

of sentencing set forth in § 3553(a)(2). In addition, Ameline

vigorously disputed the amount of methamphetamine that the

government and the probation officer sought to attribute to his

offense conduct. Ameline did not argue for reductions based

on his “background, character and conduct,” U.S.S.G.

§ 1B1.4, because, at that time, such factors were irrelevant to

a determination of his Guidelines range. Finally, the record

reflects that this was Ameline’s first serious drug conviction

and that, at the time of allocution before the district judge, he

expressed remorse for his wrongful conduct. These circumstances are sufficient to satisfy the prejudice inquiry and to

establish a violation of Ameline’s substantial rights. 

The Eleventh Circuit asked the right question in Rodriguez

in determining whether Booker error affected Rodriguez’s

substantial rights: whether there is a reasonable probability

that there would have been a different sentencing disposition

had the sentencing judge been aware that the Guidelines were

advisory. Nonetheless, it came up with the wrong answer,

holding that, because in most cases the answer will be “we

don’t know,” except in extraordinary circumstances, a defendant will not be able to meet his burden of showing that his

substantial rights have been affected. Rodriguez, 398 F.3d at

1301. The Dominguez Benitez prejudice test is not limited to

what the district judge said on the record; rather, our decision

6398 UNITED STATES v. AMELINE
must be “informed by the entire record.” Dominguez Benitez,

124 S. Ct. at 2340. Review of the entire record, including the

presentence report, should in most cases reveal objective data

from which we can determine to a reasonable probability

whether a sentence would have differed but for the Booker

error. 

The Eleventh Circuit’s overly demanding approach derives

from a misapplication of the Supreme Court’s plain error

analysis in Jones v. United States, 527 U.S. 373 (1999), in

which the Court considered an unpreserved jury instruction

error. As noted above, the Supreme Court redefined the prejudice inquiry in Dominguez Benitez. See Dominguez Benitez,

124 S. Ct. at 2339. Furthermore, in applying Jones, the Eleventh Circuit failed to consider the unique nature of the sentencing process, which involves a choice of a point within a

broad range of discretion rather than an either-or choice, like

guilt or innocence. See Paladino, 401 F.3d at 482 (“Guilt is

either-or; the defendant is either guilty or innocent. . . . But

sentencing is not either-or; it is the choice of a point within

a range established by Congress, and normally the range is a

broad one.”). 

Under the Eleventh Circuit’s approach, a pre-Booker defendant’s right to resentencing depends largely upon whether the

district court stated on the record that it felt constrained by the

Guidelines or that it would have sentenced the defendant to a

lower sentence if the Guidelines were advisory rather than

mandatory. See Rodriguez, 398 F.3d at 1301 (holding that

Rodriguez failed to meet his burden under the third prong of

the plain error test because “[t]he record provides no reason

to believe any result is more likely than the other”); see also

United States v. Shelton, 400 F.3d 1325, 1333-34 (11th Cir.

2005) (applying Rodriguez and finding plain error only

because the record reflected the sentencing judge’s frustration

with the constraints imposed by the Guidelines). Although

explicit statements of frustration or similar sentiments in the

UNITED STATES v. AMELINE 6399
record would facilitate a finding of prejudice, such statements

by the sentencing judge are not required to show prejudice. 

To the contrary: Because district judges were required to

follow the mandatory Guidelines, it would be unreasonable to

require defendants to point to criticism of, or disagreement

with, the Guidelines to establish a violation of their substantial rights. Before Blakely, we, along with other courts, had

repeatedly instructed sentencing courts to impose sentences

within the applicable mandatory Guidelines range, with limited exceptions. “This well-established case law substantially

undermined any need or incentive for sentencing courts [preBlakely] to note their objections and reservations in sentencing defendants under the then-mandatory Guidelines.” United

States v. Barnett, 398 F.3d 516, 528 (6th Cir. 2005). 

Finally, at bottom, the Rodriguez court failed to meaningfully recognize Booker’s profound impact on federal

sentencing—restoring the discretion to the sentencing court

that the mandatory Guidelines had stripped away. Nor did the

Eleventh Circuit discuss the nature of the constitutional violation, which the Supreme Court has said can only be remedied

by making the Guidelines advisory. The Eleventh Circuit

gives short shrift to the very nature of the sentencing process

and imposes a fundamentally unfair burden on defendants by

requiring a defendant to demonstrate certainty in a different

outcome under the new sentencing scheme to gain the benefit

of a constitutionally sound sentencing process. 

2. “Fairness and Integrity”

Unlike the majority, I believe we are required as an appellate court to analyze the fourth prong of the plain error test.

I would hold that the Booker error affected the fairness and

integrity of Ameline’s sentencing proceedings. Although

Ameline admitted to only a detectable amount of methamphetamine, and vigorously challenged the reliability of the

hearsay evidence presented in the Presentence Report to

6400 UNITED STATES v. AMELINE
increase his base offense level, the district court, under the

mandatory Guidelines, imposed a sentence that violated Ameline’s Sixth Amendment rights. As I have emphasized, the

sentencing judge was constrained by the mandatory features

of the Guidelines and had no opportunity to exercise the full

measure of discretion that was restored by Booker. Letting

Ameline’s sentence stand “simply because it may happen to

fall within the range of reasonableness unquestionably

impugns the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Hughes, 396 F.3d 374, 381 n.8

(4th Cir. 2005), amended on denial of reh’g en banc by 401

F.3d 540 (2005). “Moreover, declining to notice the error on

the basis that the sentence actually imposed is reasonable

would be tantamount to performing the sentencing function

ourselves.” Id. Therefore, I would hold that the district court’s

imposition of a 150-month sentence under the mandatory

Guidelines in violation of Ameline’s Sixth Amendment rights

as construed by Booker was plain error under Cotton, and that

the error is a ground independent of the Howard error for

vacating Ameline’s sentence and remanding his case for a

new sentencing hearing. 

III.

Conclusion

I, therefore, dissent from the majority’s “limited remand”

approach to analyzing whether unpreserved claims of Booker

error constitute reversible plain error. Although I agree that

Ameline is entitled to a new Rule 32 sentencing hearing on

the basis of the Howard error, I believe that he is entitled to

that remedy, apart from the Howard error, because the Booker

error in his case was plain error, reversible under Cotton.

UNITED STATES v. AMELINE 6401
GOULD, Circuit Judge, with whom WARDLAW, Circuit

Judge, joins, and O’SCANNLAIN and BEA, Circuit Judges,

join in part, concurring in part and dissenting in part: 

I concur in Parts I and V of the majority opinion, and in the

judgment vacating Ameline’s sentence and remanding for the

district court to give Ameline a new sentencing hearing consistent with our precedent in United States v. Howard, 894

F.2d 1085, 1090 (9th Cir. 1990). I also concur in Judge

Wardlaw’s partial concurrence and partial dissent concerning

the proper approach under United States v. Booker, 125 S. Ct.

738 (2005), but write separately to elaborate my views. 

I

The relief of resentencing for Ameline is required by Howard, 894 F.2d at 1090, and by the government’s concession of

error.1 An imprisoned person who shows a right to relief on

1The government during the en banc oral argument explicitly conceded

that Howard required resentencing for Ameline: 

Q: How do you deal with . . . the fact that the district court put

the burden on Ameline to disprove what was in the Presentence

Report? I mean, isn’t that a fundamental mistake that means

whatever else is the grand architecture of post-Booker sentencing

and what we do with it, that Mr. Ameline deserves another hearing? 

A: Yes. The district court in this case made an error [in shifting

the burden of proof at sentencing to Ameline] that is totally separate and apart from the larger plain error questions on which this

court granted rehearing en banc. . . . I agree that the case should

go back for that reason because a starting point of discretionary

sentencing with advisory Guidelines is a correctly calculated

Guidelines range using the appropriate principles of judicial factfinding. 

Q: Your argument is that we can’t simply affirm on the basis

of this record in this context? 

A: I would be reluctant to suggest that the Court should affirm

because it’s the government’s position that in order for a court to

6402 UNITED STATES v. AMELINE
appeal must receive it in due measure, else due process is not

satisfied. See Hicks v. Oklahoma, 447 U.S. 343, 347 (1980)

(holding that state appellate court deprived petitioner of liberty without due process of law by “simply affirm[ing] the

sentence imposed . . . under the invalid mandatory [sentencing] statute”); see also Lassiter v. Dep’t of Soc. Servs., 452

U.S. 18, 24 (1981) (“[D]ue process . . . . expresses the

requirement of ‘fundamental fairness.’ ”). 

II

Although I join Judge Wardlaw’s dissent concerning our

procedures following Booker, I write separately to express my

own views in disagreement with the majority’s “limited

remand” approach derived from the Second Circuit’s United

States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005). I think

it wrong to delegate to the district courts the task of determining whether a defendant’s substantial rights have been

affected, because this is contrary to the Supreme Court’s precedents on the plain error standard of review. 

Our review is for plain error because Ameline did not

object during his sentencing hearing on the ground that the

mandatory Guidelines or the procedures used to determine the

material sentencing facts were unconstitutional. See United

States v. Cotton, 535 U.S. 625, 628-29 (2002). A defendant

seeking relief under the plain error standard must show that

there was: 

(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an

have a properly-implemented advisory Guidelines sentence it

needs to do the right procedural things in calculating the Guidelines sentence. And although it’s conceivable that the court could

find that the judge’s error in shifting the burden to the defendant

was ultimately in itself harmless . . . . I would acknowledge that

at the outset of the hearing the judge said things about giving the

PSR presumptive credence that probably went over the line. 

UNITED STATES v. AMELINE 6403
appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings. 

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (alterations in original) (internal quotation marks and citation omitted); see also United States v. Recio, 371 F.3d 1093, 1100

(9th Cir. 2004). 

I agree with the majority’s analysis of the first, second and

fourth prongs of the plain error test. The first prong is met

because Ameline’s Sixth Amendment rights as construed in

Booker were violated by the district court’s imposition of a

sentence that was enhanced based upon judicial fact-finding

and was selected under a mandatory Guidelines system. See

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

(“Deviation from a legal rule is ‘error’ unless the rule has

been waived.”); Maj. Op. at 6358. 

The second prong is met because it is clear after Booker

that, given the mandatory nature of the Guidelines at the time

of Ameline’s sentencing, increasing Ameline’s punishment

based on facts not admitted by him or determined by a jury

beyond a reasonable doubt was contrary to his Sixth Amendment rights. See Johnson, 520 U.S. at 468 (“[W]here the law

at the time of trial was settled and clearly contrary to the law

at the time of appeal[,] it is enough that an error be ‘plain’ at

the time of appellate consideration.”); Maj. Op. at 6358. 

The fourth prong of the test, which limits our discretion to

notice forfeited Booker errors to cases where the errors seriously affected the fairness and integrity of the defendants’

sentencing proceedings, Johnson, 520 U.S. at 467, is met

because “it is a miscarriage of justice to give a person an illegal sentence, just as it is to convict an innocent person.” Maj.

Op. at 6364 (citing United States v. Paladino, 401 F.3d 471,

483 (7th Cir. 2005)). 

6404 UNITED STATES v. AMELINE
However, the majority errs in its analysis of the third prong

of the plain error inquiry, and the majority’s departure from

our traditional appellate role may have negative implications

for many cases. The majority follows the Second Circuit’s

“limited remand” approach, delegating to the district courts

the task of determining whether a defendant’s substantial

rights have been affected. Crosby, 397 F.3d at 117-18. I cannot accept the majority’s decision to adopt this approach,

because it is inconsistent with the Supreme Court’s precedents

on what is required to satisfy the “substantial rights” test. 

For an error to affect “substantial rights,” it “must have

been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. “It is the

defendant rather than the Government who bears the burden

of persuasion with respect to prejudice.” Id. To carry this burden, the “defendant must . . . satisfy the judgment of the

reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” United States v.

Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004) (internal

quotation marks omitted) (holding that defendant claiming

that plain Rule 11 error affected his substantial rights “must

show a reasonable probability that, but for the error, he would

not have entered the plea.”). 

Applying Dominguez Benitez’s substantial rights test in the

Booker context, the Eleventh Circuit explained that “[t]he

prejudice inquiry must focus on what has to be changed to

remedy the error.” United States v. Rodriguez, 398 F.3d 1291,

1303 (11th Cir. 2005). I agree. The Supreme Court made clear

in Booker that the error in pre-Booker sentencing cases is not

simply that sentences were enhanced based on judge-found

facts, but that judge-found facts were used to arrive at Guidelines sentences that were binding on the district courts. 125

S. Ct. at 750 (Stevens, J., Op. of the Ct.) (“If the Guidelines

as currently written could be read as merely advisory provisions . . . their use would not implicate the Sixth AmendUNITED STATES v. AMELINE 6405
ment.”); id. at 764 (Breyer, J., Op. of the Ct.) (“With these

two sections [that make the Guidelines mandatory] excised,

the remainder of the Act satisfies the Court’s constitutional

requirements.”). Thus, our assessment of the prejudicial effect

of a Booker error turns on whether the record reflects that

there is a “reasonable probability” that the outcome of Ameline’s sentencing proceeding would have been different if the

district court had considered the Guidelines to be advisory

when sentencing, rather than on the mere fact that Ameline’s

sentence was enhanced based on judicial findings of fact. See

United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005)

(holding that under substantial rights prong court must inquire

whether outcome of sentencing proceeding would have been

different if sentencing judge had considered the Guidelines

advisory); Paladino, 401 F.3d at 483 (same); United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005) (same);

Rodriguez, 398 F.3d at 1301 (same); Crosby, 397 F.3d at 117-

18 (same). But see United States v. Davis, No. 02-4521, 2005

WL 976941, at *1-2 (3d Cir. Apr. 28, 2005) (holding that

defendant can meet substantial rights prong by showing either

that sentence was enhanced based on judge-found facts or that

the district court erroneously believed Guidelines were mandatory at time of sentencing); United States v. Hughes, 401

F.3d 540, 548-49 (4th Cir. 2005) (holding that substantial

rights prong was satisfied because defendant’s sentence was

increased beyond the sentence supported by the facts found

by the jury or admitted by defendant); United States v. Oliver,

397 F.3d 369, 379-80 (6th Cir. 2005) (same). 

Ameline’s substantial rights were affected because extraverdict facts were used to enhance his sentence under Guidelines thought to be mandatory. At the time of his sentencing,

which took place before Booker restored sentencing discretion

to the district courts, Ameline challenged the amount of

methamphetamine that the government sought to use in calcu6406 UNITED STATES v. AMELINE
lating his base offense level. This was Ameline’s first drug conviction,2

 and Ameline expressed remorse for his wrongdoing.

Then there is the procedural error that affected Ameline’s

sentencing hearing. The district court, contrary to our holding

in Howard, 894 F.2d at 1090, placed the burden on Ameline

to disprove the drug quantities attributed to him in the Presentence Report. Had the district court required the government

to meet its burden of proof to establish the factual predicate

for the amount of methamphetamine it attributed to Ameline

for purposes of determining the base offense level under

U.S.S.G. § 2D1.1, the district court may have attributed a

lesser drug quantity to Ameline. This is especially so, in light

of the multiple layers of hearsay Ameline alleged that the district court relied upon in making its drug quantity determination. Maj. Op. at 6353-54. A lesser drug quantity in turn

might have led the district court to use an entirely different

Guidelines range, and may have also prompted the district

court to exercise discretion, if any were available, to give

Ameline a lighter sentence. 

Indeed, the district court stated at Ameline’s sentencing

hearing that it was “somewhat baffl[ed]” by Ameline’s “election to engage in this very serious and extremely detrimentalto-the-community conduct” because of Ameline’s “history

and the fact that [he was] of an age that [he was], and ha[d]

in some ways held [him]self out as a responsible individual.”

That the district court expressed surprise that Ameline had

trafficked in the large quantities of methamphetamine attributed to him by the Presentence Report bolsters the conclusion that there is a reasonable probability that the outcome of

Ameline’s sentencing proceeding would have been different

if the district court had used the proper factfinding procedure

and had not been bound by the Guidelines at the time of sentencing. 

2Ameline only had one prior conviction in 1997 for “Issuing a Bad

Check.” 

UNITED STATES v. AMELINE 6407
The government argues that Ameline cannot show a reasonable probability that he would have received a different

sentence if the Guidelines had been discretionary at the time

of his sentencing because the district court’s comments suggested that the court deliberately opted not to exercise even

the limited discretion that it had under the mandatory Guidelines, and instead imposed a sentence in the middle of the

applicable Guidelines range after considering the circumstances of Ameline’s offense conduct. In fashioning its sentence, the district court noted that Ameline’s conduct had

allegedly involved “multiple transactions of distribution of

[an] unlawful substance . . . over an extended period of time,”

and expressed its view that this conduct was “very serious and

extremely detrimental to the community” and “without question . . . hurt . . . many people.” 

While we should not minimize the seriousness of Ameline’s wrongful conduct, these statements by the district court

could be used to describe the heartland of any drug offense.

In addition, it is a non sequitur for the government to argue

that we can discern, from Ameline’s middle-of-theGuidelines-range sentence, whether the district court would

have imposed the same sentence if free of the mandatory

nature of the Guidelines. It is equally as likely that the district

court had a policy of consistently sentencing in the middle of

the Guidelines range. See United States v. Barnett, 398 F.3d

516, 528 (6th Cir. 2005) (“That the district court chose to sentence Barnett in the middle of [the mandatory Guidelines]

range does not necessarily suggest that the district court

would now feel that 265 months of imprisonment is the

proper sentence for Barnett. Nor does it suggest that the court

would not have sentenced Barnett to a lower sentence if it had

the discretion, which it does now, to apply the Guidelines in

an advisory fashion.”). 

I acknowledge that we cannot be certain what sentence the

district court would have imposed had it treated the Guidelines as advisory only. As some of our sister circuits have

6408 UNITED STATES v. AMELINE
already pointed out, “We just don’t know.” Rodriguez, 398

F.3d at 1301; see also Paladino, 401 F.3d at 483; Crosby, 397

F.3d at 118. The sentencing record often does not reflect the

subtleties that may influence the district court’s sentencing

discretion or how the human dynamics of a sentencing hearing may influence the court’s ultimate sentencing decision.

Absent an express statement by the district court that it would

have either sentenced a defendant more favorably or reached

the same result if the Guidelines were not mandatory, we can

never be certain how any particular district court would have

exercised discretionary sentencing authority. 

However, I disagree with the reasoning of those who favor

a blanket approach to handling Booker plain error cases

(whether they advocate denying relief or remanding in all

cases) because of this uncertainty, for certainty has never been

required to satisfy the prejudice inquiry in the context of plain

error review. Rather, all that is required is that there be a “reasonable probability” that the error complained of affected the

outcome of the proceedings. Dominguez Benitez, 124 S. Ct. at

2340. 

Specifically with respect to a blanket denial rule such as the

one urged by the government, it would be most unfair and

unreasonable for us to ground our prejudice analysis on the

fortuity of whether a defendant was sentenced by a particular

sentencing judge who openly criticized the Guidelines or indicated that they were unduly harsh as applied to a particular

defendant rather than one who felt constrained quietly to follow the law. Our judicial system is predicated on judges following the law and, so far as is humanly possible, keeping

their personal opinions to themselves. See Coalition for Econ.

Equity v. Wilson, 122 F.3d 692, 717 (9th Cir. 1997) (Norris,

J., dissenting from denial of reh’g en banc) (quoting Planned

Parenthood v. Casey, 505 U.S. 833, 868 (1992) (O’Connor,

Souter & Kennedy, JJ., joint op.) (“It is the responsibility of

all federal judges . . . to ‘struggle to accept’ [the burden of

rendering decisions of which they disapprove] . . . . ‘because

UNITED STATES v. AMELINE 6409
[we] respect the rule of law.’ ”).3

 And before Booker, we consistently required sentencing courts to comply with the mandates of the Guidelines. See, e.g., United States v. Chastain,

84 F.3d 321, 323-26 (9th Cir. 1996); United States v. Vilchez,

967 F.2d 1351, 1355 (9th Cir. 1992). “This well-established

case law substantially undermined any need or incentive for

sentencing courts pre-Booker to note their objections and reservations in sentencing defendants under the then-mandatory

Guidelines.” Barnett, 398 F.3d at 529. Given these realities,

we cannot now require defendants seeking to establish that

their substantial rights have been affected by Booker error to

present us with these types of statements, which sentencing

courts had no reason to make on the record under our prior

case law. Cf. Antonakopoulos, 399 F.3d at 81 (“The existence

of prejudice should not turn on how vocal the district judge

was.”). I would hold that Ameline has met his burden of

showing that there is a reasonable probability that he would

have received a different sentence if the district court had considered the Guidelines to be advisory when sentencing, notwithstanding that there is no affirmative statement by the

district court to this effect. 

The majority, however, does not express any holding on

whether the substantial rights requirement has been satisfied

3As Justice Potter Stewart sagely observed during a press conference at

the Supreme Court at the time of his retirement: 

[T]he mark of a good Justice or any judge is one whose Opinions you can read and, after you have read them, you have no

idea whether the judge was a man or a woman, a Republican or

a Democrat, a Christian or a Jew, or—if a Christian, a Protestant

or Catholic. You just know that he or she was a good judge. 

It is the first duty of a judge to remove from his judicial work

his own social and philosophical and political or religious beliefs,

and not to think of himself as being here as some great

philosopher-king to just apply his own ideology. 

Barrett McGurn, America’s Court: The Supreme Court and the People 105

(1997). 

6410 UNITED STATES v. AMELINE
here in Ameline’s case. Instead the majority follows the Second Circuit in instituting a blanket “limited remand” rule for

cases involving unpreserved Booker error where there is no

clear statement from the district court in the record about what

it would do if the Guidelines were merely advisory. Under

this approach, all such cases will be remanded so that the district court can consider whether it would have imposed the

same sentence if the Guidelines had been advisory at the time

of sentencing. Maj. Op. at 6359-60; Crosby, 397 F.3d at 117-

18. If the district court concludes that the sentence would

have been the same, there is no prejudice to the defendant,

and the initial sentence stands. Maj. Op. at 6359-60; Crosby,

397 F.3d at 117. But if the district court determines that it

would have given the defendant a materially different sentence under the Booker rules, then the defendant’s substantial

rights were affected by the error, and he or she is entitled to

resentencing. Maj. Op. at 6359-60; Crosby, 397 F.3d at 117.

This “ask the district court” approach is wrong for many reasons. 

First, I do not see how we can justify adopting a bright-line,

“one size fits all” rule if we truly are “to apply [the] ordinary

prudential doctrine[ ]” of plain error review, as Justice

Breyer’s remedial opinion in Booker admonished us to do.

125 S. Ct. at 769; see also Paladino, 401 F.3d at 487 (Ripple,

J., dissenting from denial of reh’g en banc) (“The panel decision today [adopting limited remand bright-line rule for

Booker cases] offers a superficially pragmatic, but not a principled, basis for adopting its novel approach to plain error

analysis.”). In United States v. Young, the Supreme Court

declared that “[a] per se approach to plain-error review is

flawed.” 470 U.S. 1, 16 n.14 (1985). The Court further

stressed that “when addressing plain error, a reviewing court

cannot properly evaluate a case except by viewing such a

claim against the entire record,” and that “it is particularly

important for appellate courts . . . not to extract from episodes

in isolation abstract questions of evidence and procedure”

because “[t]o turn a criminal trial into a quest for error no

UNITED STATES v. AMELINE 6411
more promotes the ends of justice than to acquiesce in low

standards of criminal prosecution.” Id. at 16. 

Most recently, in Dominguez Benitez, the Supreme Court

reemphasized the necessity of a case-by-case, fact-intensive

approach to the prejudice inquiry of the plain error test, by

stating that a defendant seeking reversal for unpreserved Rule

11 error “must thus satisfy the judgment of the reviewing

court, informed by the entire record, that the” error affected

his or her substantial rights. 124 S. Ct. at 2340 (emphasis

added). The Court thus rejected the standard this circuit had

used in deciding whether a defendant was prejudiced by Rule

11 error because that standard “d[id] not allow consideration

of any record evidence tending to show that a misunderstanding [occasioned by the error] was inconsequential to a defendant’s decision, or evidence indicating the relative

significance of other facts that may have borne on his choice

regardless of any Rule 11 error.” Id. at 2341. The majority’s

blanket rule for pre-Booker cases involving unpreserved

Booker errors cannot be reconciled with these Supreme Court

cases requiring case-specific assessments of prejudice in the

context of plain error review. 

Second, the majority’s decision to remand for the district

courts to make substantial rights determinations conflicts with

the guidance of Booker, which expressly instructs that it is the

duty of “reviewing courts,” not district courts, to determine

whether a sentencing error was plain. Booker, 125 S. Ct. at

769 (“[W]e 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.”);

see also Mares, 402 F.3d at 522 (“[W]e find no support for

[the limited remand] approach in the Supreme Court plain

error cases. Those cases place the obligation on the appellate

courts—rather than the district courts—to determine the third

prong of the plain error test.”); Rodriguez, 398 F.3d at 1305

(“The determination of plain error is the duty of courts of

appeal, not district courts.”). Even before Booker, the

6412 UNITED STATES v. AMELINE
Supreme Court consistently indicated that plain error review

should occur at the appellate level, see, e.g., Dominguez

Benitez, 124 S. Ct. at 2340 (explaining that under the plain

error standard, “[a] defendant must thus satisfy the judgment

of the reviewing court, informed by the entire record, that the

probability of a different result is ‘sufficient to undermine

confidence in the outcome’ of the proceeding”) (emphasis

added); United States v. Vonn, 535 U.S. 55, 59 (2002) (holding that under the plain error standard, “a reviewing court

may consult the whole record when considering the effect of

any error on substantial rights”) (emphasis added), and there

is nothing in Booker that “suggest[s] that this accepted practice must change in the wake of Booker,” United States v.

Milan, 398 F.3d 445, 454 (6th Cir. 2005). On the contrary, the

Supreme Court in Booker emphasized that “ordinary” plain

error rules should apply. 125 S. Ct. at 769. 

Tracking Crosby’s rationale, the majority points to 18

U.S.C. § 3742(f) as authority for its assertion that the limited

remand option “is available for election by an appellate court

assessing [plain] error [in sentencing],” reasoning that “the

power to remand for resentencing [under 18 U.S.C. § 3742(f)]

necessarily encompasses the lesser power to order a limited

remand” to permit the sentencing judge to determine whether

the third prong of the plain error inquiry is met. Maj. Op. at

6360 (citing Crosby, 397 F.3d at 117-18). But the Eleventh

Circuit has already observed that this “conclusion does not

follow at all,” because “[i]n cases of non-preserved error

appellate courts lack the authority to remand for resentencing

where the requirements of the plain error rule have not been

met.” Rodriguez, 398 F.3d at 1306. Assuming that the greater

power to remand for resentencing does include the lesser

power to do a limited remand, the majority puts the cart

before the horse by seeking to justify a limited remand for the

district court to determine the substantial rights issue on the

ground that this power is encompassed by its power to do a

full remand, when the majority cannot exercise full remand

power unless and until all four requirements of the plain error

UNITED STATES v. AMELINE 6413
test are satisfied. Even the plain language of § 3742(f), the

subsection on which the majority relies, conditions the power

to “remand the case for further sentencing proceedings” on

“the court of appeals determin[ing] that . . . the sentence was

imposed in violation of law.” 18 U.S.C. § 3742(f)(1) (emphasis added). 

The majority’s attempt to bring this case within the rule

recited in United States v. Gunning, 401 F.3d 1145 (9th Cir.

2005), about our ability to limit the scope of issues on

remand, is unpersuasive. Maj. Op. at 6360-61. In Gunning,

we ordered a limited remand on the issue of the defendantappellant’s eligibility for a minor role adjustment under the

Sentencing Guidelines because we could not discern from the

record whether that issue had been considered by the district

court. 401 F.3d at 1146, 1148. But remanding in a particular

case on an issue properly raised in the first instance at the district court level so that we might develop the record we need

to dispose of an appeal is one thing. Establishing a general

rule that requires remands in countless cases where we

already have a record so that the district courts can handle the

disposition of sentencing appeals themselves is quite another.

Gunning is inapposite because the majority is not asking the

district courts to provide us with additional information to aid

our review of an issue that initially should have been raised

at the district court level. Rather it is asking the district courts

to conduct the plain error inquiry in our stead, applying what

has always been an appellate standard of review to sentences

they themselves had imposed. Maj. Op. at 6360-61. 

Third, the majority argues that we should ask the sentencing judges what they would have done under advisory Guidelines because we cannot otherwise know whether defendants’

rights were substantially affected by Booker errors. Maj. Op.

at 6361-62 (expressing preference for limited remand option

because it “yields a result that is certain”); id. at 6362-63. But

this argument rests on the faulty premise that courts reviewing

for plain Booker error must be able to determine prejudice to

6414 UNITED STATES v. AMELINE
defendants asserting such error with certainty. As noted

above, all that the Supreme Court requires in the context of

plain error review is a “reasonable probability” of prejudice,

Dominguez Benitez, 124 S. Ct. at 2340. 

To illuminate this point, we can look not only to what the

Supreme Court has said about the prejudice inquiry under the

plain error test, but also to what it has done in the analogous

context of conducting harmless error review of district court

errors in sentencing under the Guidelines. See Olano, 507

U.S. at 734 (explaining that the plain error standard “normally

requires the same kind of inquiry” as the harmless error standard except that the burden of persuasion is on the defendant

instead of the government). In Koon v. United States, 518

U.S. 81, 113 (1996), the Supreme Court invalidated some of

the factors that the district court had relied on to depart from

the applicable sentencing range under the Guidelines. The

Supreme Court then evaluated the record before it to determine if the error was harmless, and remanded for resentencing

because “it [wa]s not evident [from the record] that the [district] court would have imposed the same sentence if it had

relied only on [permissible grounds for departure].” Id. at

113-14; see also Williams v. United States, 503 U.S. 193,

202-03 (1992) (same). Despite that there was no way for the

Supreme Court to be certain whether the district court would

or would not have sentenced the defendant differently, the

Court notably did not remand for the district court’s input on

whether the defendant’s substantial rights were affected by

the error. 

Finally, the majority’s rule does not effectively advance the

purposes of the plain error doctrine to promote the efficient

administration of justice while ensuring that the gravest injustices do not go unchecked. As the Supreme Court explained

in Young, the plain error standard provides a “careful balancing of our need to encourage all trial participants to seek a fair

and accurate trial the first time around against our insistence

that obvious injustice be promptly redressed.” 470 U.S. at 15;

UNITED STATES v. AMELINE 6415
see also United States v. Wilson, 237 F.3d 827, 836 (7th Cir.

2001) (“The plain-error standard, which we are required to

apply when a district court has not been given the first opportunity to correct alleged mistakes, strikes a balance among the

proper functioning of the adversary system, efficiency in

managing litigation, and the demands of justice.”) (internal

citation omitted). 

Although the majority’s per se rule delegating the substantial rights inquiry to the district courts might make our task of

reviewing pre-Booker plain error cases easier at the outset, it

regrettably may prove to be a less efficient approach in the

long run than performing traditional case-by-case plain error

review at the appellate level. Under the limited remand

approach, a district court will have to “obtain the views of

counsel, at least in writing,” so attorneys can reargue sentencing issues as they would have if Booker had been the law at

the time of the original sentencing. Maj. Op. at 6370; Crosby,

397 F.3d at 120. The district court will next evaluate the

record as supplemented by the attorneys’ arguments, and then,

treating the Guidelines as discretionary, will decide if it would

impose a materially different sentence. Maj. Op. at 6364;

Crosby, 397 F.3d at 120. As the Eleventh Circuit observed in

Rodriguez, this rule “essentially requires resentencing [albeit

with truncated procedures] in order to determine whether

resentencing is required,” and then “add[s] the real possibility

of another appeal and another remand on top of that,” because

the parties retain the right to appeal the district court’s decision on whether it would have imposed a different sentence

under an advisory sentencing system. 398 F.3d at 1305; see

also Mares, 402 F.3d at 522 (agreeing with the Eleventh Circuit that the limited remand approach “has the potential of

producing many needless remands and appeals from those

remands,” and voicing the belief that “the Supreme Court

sought to avoid these extra steps in the judicial process by

requiring appellate courts to answer all prongs of the plain

error test”). 

6416 UNITED STATES v. AMELINE
Not only is the majority’s rule unlikely to increase our efficiency in processing Booker plain error cases, it provides

inadequate protection for those defendants with valid plain

error claims. If we were to apply plain error review at the

appellate level as the Supreme Court’s precedents direct us to

do, we would narrow the pool of cases for remand to those

where the record demonstrates that there was a reasonable

probability the defendant would have received a different sentence if the district court could have exercised discretion in

sentencing. Because we would vacate the original sentences

in such cases and require the district court to resentence in

accordance with Booker, those defendants would get the full

benefit of the Supreme Court’s ruling. Thus application of traditional plain error review in this context of forfeited Booker

error would properly ensure that judicial resources are only

expended for resentencing in cases involving miscarriages of

justice that plainly warrant correction, while also ensuring

that the defendants in those select cases will be sentenced in

a manner that does not violate their constitutional rights as

construed by the Supreme Court in Booker. 

With its limited remand approach to plain error review, the

majority decrees that every pre-Booker defendant asserting

plain error will receive a “quick look” at the district court

level. But the risk of this widespread remedy is that those

defendants that actually have plainly erroneous sentences

might not get the full attention that they deserve. Judge Ripple

from the Seventh Circuit articulated this concern persuasively

in his dissent from the Seventh Circuit’s decision to adopt the

same type of limited remand rule, stating that such an

approach “[i]n all too many instances . . . will serve as an

invitation for the district court to give only a superficial look

at the earlier unconstitutionally-imposed sentence,” and that

“[t]he constitutional right at stake hardly is vindicated by a

looks-all-right-to-me assessment by a busy district court.”

Paladino, 401 F.3d at 486 (Ripple, J., dissenting from denial

of reh’g en banc). 

UNITED STATES v. AMELINE 6417
The majority claims that it is reluctant to speculate as to

what the district court would have done under the Booker

rules, but the solution the majority adopts does not really

address this concern because the majority in essence is asking

the district court to speculate in its stead. The inescapable

reality is that:

Until the district court undertakes a new sentencing

process—cognizant of the freedom to impose any

sentence it deems appropriate as long as the applicable guidelines range and the 18 U.S.C. § 3553(a) factors are considered—the district court cannot

accurately assess whether and how its discretion

ought to be exercised. The panel’s holding requires

the [district] court to pre-judge and to pre-evaluate

evidence it has not heard. 

Id.

Because “the universe of factors that guides sentencing is

larger than it was pre-Booker,” id. at 488 (Kanne, J., dissenting from denial of reh’g en banc), there are many issues that

defendants before Booker might not have raised or emphasized at their original sentencing hearings that the district

courts can now freely consider under the advisory Guidelines

system. Requiring the district court to obtain the views of

counsel in writing does not make the abbreviated process outlined by the majority an adequate substitute for the sentencing

process mandated by Booker. Sentencing involves “subtle

issues as to how much emphasis ought to be given to particular facts and circumstances” that can be resolved “competently only after hearing witnesses and seeing the evidence.”

Id. at 486 (Ripple, J., dissenting from denial of reh’g en banc).

Additionally, a district judge reviewing a cold, incomplete

record supplemented by written arguments does not have the

benefit of evaluating the relevant facts in the context of the

human dynamics that come into play during sentencing hearings. In short, it is hard to see how even the original sentenc6418 UNITED STATES v. AMELINE
ing judges would be able to give an accurate assessment of

how they would have acted had the Guidelines been advisory

when they were sentencing pre-Booker defendants. We gain

little by delegating to the district courts our duty as appellate

judges to conduct plain error review, because the limited

remand approach is neither more efficient nor more accurate

than the conventional approach in determining whether a

defendant’s substantial rights have been affected by sentencing error. 

I respectfully dissent. 

O’SCANNLAIN, Circuit Judge, with whom Judge Bea joins,

concurring in part and dissenting in part: 

With hundreds of Booker-implicated cases awaiting disposition, we have chosen one of the worst possible vehicles in

our inventory—one that presents a clear sentencing error

unrelated to the constitutional issue for which we took it en

banc to decide. I am fascinated that while we unanimously

agree that Ameline’s sentence must be vacated and remanded

to the district court for resentencing because of the Howard

error, the district court judge in this case is free to resentence

on a clean slate and to apply Booker as he sees fit. 

However, since the Court now promulgates the Second Circuit’s “limited remand” without vacatur approach as our standard for all other pending Booker-related appeals, I would,

instead, follow the jurisprudence of the Fifth and Eleventh

Circuits as described in, respectively, United States v. Mares,

402 F.3d 511 (5th Cir. 2005), and United States v. Rodriguez,

398 F.3d 1291 (11th Cir. 2005), and simply apply plain error

review with our usual vigor—to use the majority’s language

—“the way plain error review normally works.” Maj. op. at

6362. 

UNITED STATES v. AMELINE 6419
Forced to make the best of our predicament, I concur in

Parts I, II and V of Judge Rawlinson’s majority opinion and

its result; I join Part I of Judge Wardlaw’s lead dissent; and

I join Judge Gould’s dissent, with the exception of his analysis of the third prong of plain error review. 

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 the 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, 124

S. Ct. 2333, 2340 (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 con6420 UNITED STATES v. AMELINE
fidence 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 (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, 125 S. Ct. 738, 769 (2005) (citations

omitted, emphasis added). In contemplating that the plainerror 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 preceUNITED STATES v. AMELINE 6421
dent and abdicate our non-delegable duty.1 Agostini v. Felton,

521 U.S. 203, 237 (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. 

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 6370. 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

1Additionally, for the reasons ably pointed out by Judges Wardlaw and

Gould, a “quick look” remand may not be the easiest solution after all. 

6422 UNITED STATES v. AMELINE
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.

2Such 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.

§ 3882(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.”). 

UNITED STATES v. AMELINE 6423
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. 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 resentencing 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). 

3Where 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. 

6424 UNITED STATES v. AMELINE
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.

UNITED STATES v. AMELINE 6425