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The Ninth Circuit U.S. Court of Appeals gave district judges limited power to review their own sentences Wednesday in a compromise to resolving the hundreds of appeals thrown into disarray by U.S. v. Booker. Wednesday’s fractured 7-4 en banc decision was one of the most acrimonious to come out of the circuit in recent memory. Dissenters accused the majority of not following Supreme Court precedent and of placing administrative concerns over the interests of justice. Neither defense attorneys nor the U.S. Department of Justice had requested the majority’s “limited remand” approach to resolving cases affected by Booker. “Essentially, this is a punt,” said Douglas Berman, a professor at Ohio State University’s Michael E. Moritz College of Law who runs the Sentencing Law and Policy Blog. Wednesday’s ruling said that if the record is unclear regarding plain error, a limited district court remand is appropriate to figure out whether the sentence imposed would have been different had the district court known that the sentencing guidelines were only advisory, as the U.S. Supreme Court decided in Booker. Steven Hubachek of Federal Defenders of San Diego, who represented defendant Alfred Ameline in the appeal, said he was pleased the panel didn’t adopt prosecutors’ recommendations. But he worried that the Ninth Circuit did not address whether defendants will get a full rehearing as the district judge reconsiders sentencing. “It seems to me they’ve left it pretty vague,” Hubachek said. Although he had not yet discussed the result with Ameline, who was convicted of conspiring to distribute methamphetamine in Montana and is currently in federal prison, Hubachek said he didn’t think he would appeal the en banc ruling to the U.S. Supreme Court. Still, the issue may reach the high court through other means. A similar case out of the 11th Circuit has a certiorari petition pending, and the Justice Department has recommended justices take the case. There are about 500 appeals in limbo at the Ninth Circuit, with as many as 200 more in the pipeline, according to the clerk’s office. Now, most of those will head back to district court for judges to reconsider. “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 . . . and everyone will be left to wonder about whether the sentencing court might have acted differently,” Judge Johnnie Rawlinson wrote in the 33-page majority opinion. “It seems to us that would itself undermine the fairness, integrity and public reputation of the judicial proceedings, something which we should try to avoid.” Joining Rawlinson were Chief Judge Mary Schroeder and Judges Michael Daly Hawkins, Sidney Thomas, William Fletcher, Raymond Fisher and Richard Clifton. Judges Kim Wardlaw, Ronald Gould, Diarmuid O’Scannlain and Carlos Bea concurred with parts of Rawlinson’s ruling but also dissented, joining each other in various combinations. Wardlaw’s dissent was the longest at 36 pages and lifted language from the majority opinion to sarcastically accuse her colleagues of being more concerned with speed than justice. “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,” Wardlaw wrote. “Although the burden-shifting approach the majority arrives upon may be ‘short,’ ‘easy’ and ‘quick,’ it is neither correct nor just.” Wardlaw, like Hubachek, also didn’t like that the majority won’t give defendants an opportunity to be heard. “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,” she wrote. The Ninth is the last circuit to come up with a plan to handle pending appeals in light of Booker, 125 S. Ct. 738 (2005). In that Jan. 12 decision, the U.S. Supreme Court ruled that the 20-year-old federal sentencing guidelines were no longer mandatory and were now only advisory. Since then, circuits have split on whether — and how — defendants should be resentenced. With Wednesday’s decision, the Ninth Circuit has aligned itself with the Second, Seventh and D.C. circuits. In the Seventh and D.C. circuits, appellate courts have maintained jurisdiction during the reconsideration process. The Ninth, like the Second, is giving up jurisdiction to let district judges carry the ball. Berman, the sentencing expert, said the Ninth’s plan was “procedurally novel but eminently sensible.” Still, he thinks it likely the U.S. Supreme Court will take up the issue to resolve the circuit split. But Rory Little, a Hastings College of the Law professor who once headed the appellate section for the Northern District U.S. attorney’s office, said he thinks the Supreme Court will leave it alone. By the time the case would be decided, “all of these remands are likely to be done,” Little said. The opinion in U.S. v. Ameline, 02-30326 will appear in Friday’s California Daily Opinion Service.

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