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Italics and Dicta in Ameline
The Ninth Circuit’s new and improved Ameline decision provides important guidance for defense counsel. At the District Court level, Ameline admitted to possession of only a “detectable amount” of methamphetamine, strongly objecting to the drug quantity found by the probation officer. At sentencing, the Court placed the burden on the defendant to prove that the amount stated in the presentence report was inaccurate. The new Ameline decision concludes that shifting the burden to the defendant was improper. The court also found that although Ameline didn’t object on sixth amendment grounds at the District Court level, the error was “plain,” and could therefore be considered by the appellate court. Some of the court’s discussion concerning plain error would seem to limit review to cases, such as Ameline's, where the defendant made no admission to drug quantity and objected to the quantity found by the court. However, the court writes in what probably would be considered dicta, that “[a]ccordingly, it is the truly exceptional case that will not require remand for resentencing under the new advisory guideline regime.” The italics were used for the purpose of emphasis. The phrase intimates what I earlier predicted: there are going to be a lot of Booker resentencings.