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The 9th U.S. Circuit Court of Appeals decided Wednesday that the U.S. Supreme Court’s recent ruling on federal sentencing guidelines applies to most, if not all, cases currently on appeal. The San Francisco-based court held that sentencing someone under the guidelines constituted “plain error” — which should make it easier for defendants to win appeals. Of course, that means they will only go back to the district court, which still has to analyze several factors before resentencing. “Any appeal that’s still not final is going to get a remand,” predicted Rory Little, a Hastings College of the Law professor and former federal prosecutor. The 9th Circuit’s opinion, U.S. v. Ameline, 05 C.D.O.S. 1183, is important because it’s the first time the appellate circuit, the largest in the United States, has spoken since last month’s U.S. Supreme Court decision on the guidelines in U.S. v. Booker and U.S. v. Fanfan, 05 C.D.O.S. 315. In those opinions, the high court said the federal criminal sentencing guidelines approved by Congress 20 years ago violated the Sixth Amendment right to a jury trial and ruled that the guidelines are now only advisory. Since then, attorneys and judges have been waiting to find out exactly what that means for pending trial court cases and matters on appeal that raise sentencing issues. The 9th Circuit has dozens of such appeals awaiting disposition. Ameline was the same vehicle used by the 9th Circuit in July when the status of the sentencing guidelines was up in the air following another Supreme Court decision, Blakely v. Washington, 124 S.Ct. 2531. Alfred Ameline pleaded guilty in the district of Montana to conspiring to distribute “some” methamphetamine. He thought he would only get about 16 months in prison. Ameline appealed after a judge found the amount to be more than 1 1/2 kilograms and sentenced him to 150 months. In the July opinion, United States v. Ameline, 376 F.3d 967, the 9th Circuit ruled that Blakely did indeed apply to federal sentencing guidelines. Since then, lawyers have used a variety of strategies to deal with sentencing in criminal cases, including holding bifurcated trials to determine sentencing factors. Little said Wednesday’s ruling was not exactly a surprise but added that the court deserves praise for taking a methodical approach to handling sentencing issues in light of Booker. “I think the Ninth Circuit is being really responsible in the way it’s reacting to Booker,” Little said. “Other circuits are issuing competing panel decisions.” Wednesday’s ruling also laid out how things should work on remand. Trial courts still have to do an analysis based on the sentencing guidelines and still have to do probation sentencing reports, but those reports are not assumed to be accurate, according to the opinion. Judge Richard Paez authored the ruling. He was joined by Judges Kim Wardlaw and Ronald Gould. “Although the district court is not bound by the sentencing guidelines range, basic procedural fairness, including the need for reliable information, remains critically important in the post- Booker sentencing regime,” Paez wrote. Defense attorneys immediately applauded Wednesday’s opinion. Steven Kalar, senior litigator at the Northern District Federal Public Defender’s Office, called it a “wonderful decision.”

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