*1 America, STATES UNITED
Plaintiff-Appellee, AMELINE, Arnold
Alfred
Defendant-Appellant.
No. 02-30326. Appeals, Court of States
United
Ninth Circuit. 4, 2003.* Nov.
Submitted July
Filed
* argument. without oral for decision unanimously this case suitable finds The Panel *3 Firm, Fay, Angel
Brian P. Law Boze- man, Montana, for the appellant. Suek, United Harper Lori Assistant Falls, Montana, for Attorney, Great States appellee. WARDLAW, GOULD, and Before: PAEZ, Judges. Circuit PAEZ, Judge. Circuit his 150 month appeals Ameline Alfred pled after he imposed was sentence conspiring to distribute knowingly guilty of U.S.C. violation methamphetamine 841(a)(1) appel- initial and 846. In his §§ brief, challenged his sentence Ameline late First, Ameline contended grounds. on two objected to the amount he that because to him in the attributed methamphetamine (“PSR”) the district Report Presentence as it considered PSR court erred when the facts” and evidence of “prima facie contents disprove its required Ameline to Second, Ame- relating drug quantities. court’s the district contended line clearly errone- finding was quantity drug multiple lay- ous because it was based on tencing facially invalid. Ac- hearsay of unreliable evidence. ers cordingly, we vacate Ameline’s sentence and remand for resentencing. post-submission briefing, ar Ameline imposition that the gued of his sentence
violates the Sixth Amendment
recently
I.
interpreted by
Court
Background
-
U.S.-,
v. Washington,
(2004)
the facts the calculation of his spiring to distribute methamphetamine in offense level base and his sentence en- 841(a)(1) violation of 21 §§ U.S.C. and 846. hancement were not found be- His plea agreement did not contain an *4 a yond reasonable If doubt. Ameline is agreement as to a specific quantity of correct that the rule to applies the methamphetamine purposes for of sentenc- Guidelines, Sentencing United States his ing, but rather left that determination to irrelevant, other two claims become as the district court at the time of sentencing. they assume both wrong the decision-mak- At Ameline’s change plea of hearing, he wrong proof. er the of standard We disputed government’s the proof offer of sponte examine sua the Blakely whether that he distributed one and a half kilo- rule applies to imposed sentences under grams of methamphetamine, but admitted the Sentencing Guidelines. We hold that that “some methamphetamine” was in- Blakely’s statutory definition of maximum volved in his offense conduct. At the end applies to the determination of the base of hearing, the Ameline’s counsel reiterat- presumptive offense ranges under ed this point: vigorously “[W]e do oppose 2Dl.l(c) § Guidelines, of the Sentencing as the amounts that government the attrib- well as the determination of the applicabili- utes to Mr. Ameline. And at the sentenc- ty upward of an enhancement under ing hearing, we anticipate bringing quite in 2Dl.l(b)(l). § result, As a we hold that a few I witnesses ... would ask that the sentence, Aneline’s based on the district court set aside part the day. better of a I finding court’s by preponderance a of the mean, I’m kind of anticipating trial on the 1,603.60 evidence of grams of methamphet- amounts of drugs involved is what I’m despite Ameline’s admission of amine— anticipating.” only a detectable amount of methamphet- prepared PSR by the Probation Of- amine—violates Ameline’s Sixth Amend- 1,079.3 fice attributed grams of right ment to a trial. metham- Because we phetamine to may Ameline for sponte purposes sua an of issue ap- review based on a plying change drug Court, equivalency the law the Supreme table found in § U.S.S.G. may 2Dl.l(c), we hold that we properly resulting review Ame- a recom- conclude, line’s mended Blakely claim base regard- level of offense 32. The PSR less of whether also we apply the harmless recommended a two or level enhance- plain standard, pursuant 2Dl.l(b)(l) error ment § that the district court posses- violated right Ameline’s sion weapon to have of a the facts in connection with the underlying his sentence beyond found offense on of hearsay basis testimony reasonable Finally, doubt. we hold confidential informant that Ameline the Blakely rule’s effect on the determina- sold the confidential informant metham- tion of a base phetamine offense level under in exchange rifle, for a and that 2Dl.l(c) § and an upward enhancement he once witnessed Ameline threaten his 2Dl.l(b)(l) § under do not render the Sen- son with a handgun. calculated as drug weight total amount officer disclosed probation
After methamphetamine. government, kilograms and the 1.08 to Ameline PSR draft April the court’s
Ameline, required by Memorandum, In Ameline’s Order, presented again object- he September dated objections a series officer with probation methamphetamine to the amount of ed at- methamphetamine quantities Specifically, him in attributed to the PSR. report. Ameline to him the tributed objected to the amount meth- Ameline objected paragraphs to the two also sought amphetamine probation officer 2Dl.l(b)(l) en- the basis of formed 13,17, 24 paragraphs to him in to attribute gun possession —as hancement — Paragraph 13 of the and 28 of the PSR. the draft objecting letter “false.” In his met with alleged that Ameline PSR his PSR, the basis for explained “Toro,” Rodriguez, aka Great Shawn he on which objections and the evidence Falls, Montana where Toro “fronted” sentencing hearing. The at the rely half of Ameline a and a metham- pound ob- dismissed Ameline’s officer probation (680.4 grams). According phetamine his determination jections and reaffirmed PSR, of this information the source in the methamphetamine quantity *5 Toro, cooperator and was not but rather PSR, en- upward well as the original co-defendant, Saucedo, who claimed Victor ex- officer probation hancement. As the by Paragraph to have been told this Toro. to the in an addendum PSR: plained gave alleged that Jamie Swan Ameline purposes for The information obtained (283.5 methamphetamine ten ounces sec- in the Offense Conduct of inclusion had received grams). supposedly Swan the solely based on report tion of the is gave to Ameline methamphetamine he the by provided investigative reports official Lamere. Para- from co-defendant Michael and County Sheriffs Office the Cascade grams of metham- attributed 113 graph Investigation. Bureau of the Federal on three sales to Ameline based phetamine objections of the Subsequent receipt by a con- to Ameline methamphetamine Report Investigation to the Presentence 28 attrib- Paragraph informant. fidential attorney, this offi- the defendant’s from methamphetamine grams uted two matters investigative again cer discussed on statements Reuben Ameline based reports with to official
and reference that he investigators Kohm, County McDowell made Cascade Dan Detective gram quantities one Office, Phil had twice dealt Special Agent Sheriffs to Ameline. methamphetamine Bureau of Inves-
Niedringhaus, Federal verify validity the contained tigation, to hear- of the beginning At the Detec- report. Both investigative in the called, the were any witnesses ing, before Niedringhaus Agent tive Kohm how he parties informed the judge district credibility of the individuals question proceed: intended forward to bring wishes to the defendant court in this of this testimony position for the defendant It is the provide cases, matter, that the Both in all such drug a lower amount. as it is support of re- presentence indicate that in the Niedringhaus as recited Kohm and facts of informa- evidence prima is a reliable source are facie port the Cl there; that if the defendant
tion. set out pre- facts set forth in challenges the result, stands this Officer As burden of report, it is the sentence in the Pre- provided information original facts con- that to show and the defendant Investigation Report
sentence report PSR, tained in the are either untruth- graph 24 of the Ameline called the inaccurate, ful, or otherwise informant, Metcalf, unreliable. confidential Dan to tes- tify about his transactions with Ameline. The then asked district defense Metcalf testified that he and Ameline en- However, call his first counsel to witness. gaged four or five transactions for a any witnesses, called
before counsel total of three ounces of methamphetamine. again position: reiterated its Ameline called Reuben McDowell to dis- my position that the [I]t statements in pute the contents of paragraph 28 of the presentence is, report, state- that, PSR. McDowell testified contrary to fact, ments of are reliable their face the assertion in paragraph he had nev- and prima facie evidence of the facts er any quantities dealt methamphet- taking there stated. And I will be those amine to Ameline. into account to the extent relevant to obligations that I in fashioning have sen- At the hearing, conclusion of the fixing
tence and responsibility drug 1,603.601 district court found that grams quantities, they are not overcome of methamphetamine were attributable to if presented other evidence at this hearing. Ameline, for a base offense level of 34. guided accordingly, (emphasis
Be add- The district court stated “I should let all ed). parties know that all findings are based upon preponderance of the evidence objections, Consistent with his Ameline standard and are established at least to presented testimony from dispute Toro to standard the view of the court.” the amount of methamphetamine attrib- 2Dl.l(b)(l) district court found the paragraph uted to him in 17 of the PSR. “undisputed” enhancement for an offense provided Toro testified that he *6 level of but points deducted three for with three ounces of methamphetamine in timely acceptance of responsibility, for a October but that Saucedo was not total offense level of 33. The district court present when the place. transaction took months, sentenced Ameline to 150 in the Toro further testified that he never told middle of the 135 to range 168 month Saucedo that he provided had Ameline provided by the Sentencing Guidelines. pounds one and a half of metham- phetamine. As to the amount of metham- II.
phetamine attributed to para- Ameline in graph by 17 of the PSR the statement of Analysis Swan, Jamie presented the testi- A. Can We Consider Ameline’s Post>- mony of Michael Lamere who testified that Argument Submission Regarding Blake- Swan was not in charge selling the one ly? pound quantity of methamphetamine that he supposedly part noted, distributed of to Ame- As Ameline initially challenged line. Lamere testified that Jamie Swan the district court’s determination that he was mistaken in his belief that Ameline bore the burden of disproving the factual received 10 ounces of the pound quan- one statements in the relating PSR drug tity of methamphetamine. As to para- quantity and the court’s determination that greater 1. This amount was court, than that drug however, recom- amount. The district by mended the PSR. The PSR described two included the amounts described in those two additional paragraphs transactions in 20 and paragraphs, establishing thus higher an even probation but the officer did not include base offense level. those calculating transactions in the overall prove drug Blakely, at 2535. the trial hearsay evidence used In court authority No- utilized this sufficiently impose reliable. On a 90 quantity was sentence, 4, 2003, month though when Ameline’s case was even the standard vember offense, submitted, pre- range Blakely’s second-degree he contested neither the kidnapping, of the evidence standard used was 49 to 53 months. ponderance Id. judge striking Blakely’s nor the of the down enhanced
by
judge
propriety
sen-
tence,
explained
‘statutory
factfinder.
the Court
“the
maximum’ for Apprendi purposes is the
24, 2004,
June
Court
On
judge may impose
maximum sentence a
Blakely,
in
which raised
issued its decision
solely on the basis
facts reflected
initial chal-
possibility
that Ameline’s
jury
by
verdict or admitted
the defen-
had been
a violation
lenges
subsumed
dant.” Id. at
(emphasis
original).
rights.
of his Sixth Amendment
Thus,
because the
did not determine
Blakely
provision
addressed
the factual
for the
basis
enhanced sen-
Washington State’s determinate sentenc-
tence,
facts,
Blakely
did not admit the
judge
impose
that allowed a
law
his enhanced sentence could not survive a
statutory
sentence above the standard
sen-
challenge.
Sixth Amendment
found,
tencing range
if the
evidence, that
preponderance of the
cer- With its clarification of a defendant’s
aggravating
rights,
tain
factors existed
Amendment
the Blakely
offense
Sixth
justified
change
body
a sentence
excess of the
court worked a sea
at- n ,
—
range.”
sentencing
“standard
law.2 We would be remiss if
(S.D.W.Va.
30, 2004),
change
by Blakely's
2. This sea
is evidenced
June
*13;
impact
Transcript
immediate
on Guideline
U.S. Dist. LEXIS
at
throughout
system.
Resentencing Hearing,
Our
federal
sister
United States v. Wat
son,
03-0146,
(D.D.C.
already
applicability
split
have
on the
CR
circuits
at 11-13
June
2004)
imposed
http:llwww.uss-guide.com/members/cgi-binlindex.cfm;
rule to sentences
un
available
der the Guidelines. See United States v. Book
i
Transcr
er,
pt
Sentencing Hearing,
at *4
we did not examine imposed under applies to sentences standard, ance of proof the evidence INS, Guidelines. See DeGurules 833 beyond a Assuming reasonable doubt. (9th Cir.1987) (“[A]
F.2d funda- Blakely implicate imposed does sentences jurisprudence mental of our is principle Guidelines, under the as Ameline has ar- apply that a court will the law as it exists gued post-submission briefing, his rendering
when its decision ... [T]his simply arguments address Ameline’s initial when a principle applies change even questions may would be to answer no existing during pendency law occurs longer be relevant to federal criminal sen- added). appeal.”) (emphasis an tencing. precedent provides ample sup
Our Although Ameline made no challenge to port authority for our to consider sua applicable proof standard of or to the sponte initially a claim that was not raised judge’s factfinding authority, we hold that previously on appeal. We have “exam the Sixth Amendment implications of application sponte sua ine[d] [a] Blakely allow us sponte to examine sua its opinion” recent Court when it potential impact on Ameline’s sentence.
appeared “controlling authority that a has We therefore consider as a matter of first contrary applicable made a decision of law impression whether Blakely ap- rule Garcia, to this issue.” United States v. 77 plies imposed to sentences under the Sen- (9th Cir.1996). F.3d See also tencing Guidelines. Bus., Inc. v. Symington, Parks Sch. B. Does the Right Sixth Amendment An- (9th Cir.1995) (“We F.3d will Blakely nounced in Apply to Sentences an issue that has been review raised Imposed Under the United States Sentenc- appeal the first time on under certain nar ing Guidelines? circumstances,” including row “when a joinWe the Seventh Circuit change in law raises new issue while an holding that there no principled is distinc walkers, appeal pending.”); Sky In re tion between the Washington Sentencing Inc., (9th Cir.1995) 548 n. Reform Act3 at in Blakely issue and the
(“change pending appeal permits law United States Sentencing Guidelines. entertainment of issue not theretofore Booker, 2004 WL at *3. While the raised.”). Blakely only Washing addressed the Ameline’s case squarely presents such a scheme,4 ton State sentencing the manner If apply situation. rule does majority which the defined the “statuto imposed to sentences under the Sentenc- ry compels maximum” us to conclude that Guidelines, therefore, to Ameline’s reasoning its applies equal force to *8 sentence, Ameline’s initial arguments are the Sentencing Guidelines. point.
beside the His initial challenges assume a federal sentencing scheme federal Sentencing where
the
judge,
jury,
district
not the
by
determines
scheme created
the 1984 Sentencing
the
may
material facts that
increase the Reform
remarkably
Act5 is
similar to the
(2000).
§
3.
Wash. Rev.Code Ann.
Sentencing
9.94A.390
5.The
Reform Act of
amended,
seq.,
§
18 U.S.C.
et.
28 U.S.C.
Indeed,
4.
expressly
the
Court
noted
§§ 991-998.
that “The Federal Guidelines are not before
us,
express
opinion
and we
no
on them.”
-
at -,
Blakely,
n.
975 sentencing judge may impose solely In on Washington State scheme. the basis of jury the in the or Blakely there two state verdict were facts reflected by admitted the ... In setting statute the other at issue. The statutes defendant words, “statutory the relevant maxi- felony ranges for each class of sentence mum” is not the maximum a sentence Washington designated ten offenses judge may impose finding after addition- punishment maximum years as the facts, al maximum im- may but the he Blakely’s degree kidnapping of- second pose any without findings. additional Rev. Ann. fense. Wash. Code — judge punishment a inflicts When 9A.20.021(l)(b); ——, § 124 U.S. at allow, jury’s the verdict alone does not Washington’s Sentencing at 2535.
5.Ct. jury the has not found all Act, however, sepa- in a specified
Reform “which the law to makes essential statutory provision
rate a “standard punishment,” and the judge exceeds his Blakely’s months for range” of 49 proper authority. Ann. offense. Wash. Rev.Code (internal omitted).
§ The trial court exceed 9.94A.320. could Id. citations only if the court found a “sub- range this judge’s The Court held that the trial justifying compelling stantial and reason sentence of 90 months violated princi- this — exceptional an sentence.” U.S. at ple justified it “solely because was not on --(cid:127), Washing- at 2535. Under guilty the basis of facts admitted in the Act were ton’s Reform there plea” judicial but rather involved fact-find- potential sup- several factors that would aggravating which factors increased judge’s depart decision to from the port the sentence. Id. case, presumptive range. Blakely’s Id. similarly subject dueling Ameline was act- the trial court found that had “statutory máximums.” Under U.S.C. cruelty,” ed with “deliberate one of the 841(b)(1)(C), § potential he faced a sen- justifying excep- factors an enumerated However, years. tence of 0 to 20 Con- tional sentence. Id. gress provided, through implicit its also In ruling that the Sixth Amendment 2Dl.l(e), adoption differing U.S.S.G.
right Blakely’s to a trial rendered range presumptive sentences based unconstitutional,
exceptional sentence quantity drugs, including metham- ten-year Court did not focus on the statu- by phetamine, as determined the district maximum, tory but rather the “standard judge or admitted the defendant.6 range” of 49 to 53 months established Here, judge’s the district factual find- with Reform Act. ings, faced a base offense level of “statutory Appren- sentencing range maximum” for of 151 to 188 [T]he Solely maximum a months.7 on the basis of Ameline’s purposes di is the sentence they require sentencing judge ex- are thus As the Fifth and Seventh Circuits have (and findings do under to make of fact so plained, liberty the district court was not at ....”). wrong proof) See also standard of ignore making the Guidelines in these find- Bahe, 201 F.3d 1129 n. United States ings, peril do and indeed would so course, (9th Cir.2000) (“Of when the Com Pineiro, being reversed. ..., guidelines issues actual we are mission ("Like at *6 who 2004 WL required by prior to make them case law *9 rules, disregards Washington sentencing the a binding.”). judge disregards federal who the Guidelines pain does so on of reversal. The Guidelines noted, 7. As he also faced an additional two catalog sugges- Manual is not a of mere possession point upward of enhancement for Booker, tions.”); 2D1.1(b)(1) WL gun pursuant solely § 375 F.3d 2004 on the a ("The judge's finding. guidelines district at *2 vices of the basis of the 976 a distributing judge imposed simply detectable district could have
admission of any methamphetamine, amount of “without on the basis of facts admitted Ameline. - Blakely, at findings,” additional U.S. directly parallels sentencing pro- This the -, at 124 his base offense Blakely. cess held unconstitutional in
level have been with a would government argues the Sen- range Although of 10 to 16 months. we tencing unique Commission’s status as an “statutory have held that the maximum” judi- Commission within the independent is the of Apprendi purposes for statute compels cial branch the conclusion that the (here, 841(b)(1)(C)), § conviction8 Blake inapplicable rule is to sentences “statutory maximum” ly’s definition of imposed under the judge may maximum a im Guidelines. We are “the sentence pose solely unpersuaded. on the basis the re In supplemental briefing, in the verdict or admitted government argued the that because the flected —— at -, defendant,” the S.Ct. Sentencing are “legislative- (emphasis original), suggests enacted,” ly “unique prod- but are rather a this conclusion was in error. special uct of a delegation authority” independent judicial an Commission the only
Here admitted to a Ameline detect- branch, methamphetamine.9 able amount of the Guidelines cannot set the On rele- alone, the statutory basis of this admission the maxi- vant Blakely. máximums under mum sentence under the Guidelines that Presumably government even the imposed—
the district could have concede that Congress prescribed had first any findings without further have presumptive sentencing ranges to the —would months, given been 16 a base offense level Commission, Sentencing 2Dl.l(c)(14) (base § of 12.10 See U.S.S.G. indistinguishable Guidelines would be from applies offense level 12 when the offense Washington sentencing scheme as the “[ljess than of Methamphet- involved 2.5 G ranges “legislatively would be enacted.” amine, or less than 250 MG of Metham- are Congres- We unconvinced that (actual)”). Instead, phetamine the district delegation authority sional to the Sen- months, imposed a sentence of 150 tencing presumptive Commission to set based on a base offense level of a two sentencing ranges in the first instance cre- pursuant level upward enhancement any ates 2Dl.l(b)(l) meaningful Congress distinction. possession U.S.S.G. of a to, must, firearm, authority retains the threerpoint and a indeed reduction .for acceptance ratify the responsibility Every which far ex- Guidelines.
ceeded the maximum sentence that the Guideline promulgated by the Commission Hernandez-Guardado, government 8. See United proffered States v. agreed that Ameline (9th Cir.2000). 1026-27 distribute between one and one and a half kilograms methamphetamine. previously 9. We have held that "even where vigorously disputed and his counsel this char- process due requires drug quantity that a only acterization and admitted to a detectable allegation pleaded be in the indictment and methamphetamine amount of plea at the col- doubt, proved jury beyond to a a reasonable circumstances, loquy. In these Ameline’s plead guilty defendant can to the elements of guilty plea did not constitute an admission of admitting drug quanti- offense without proffered by government. the amount Thomas, ty allegation.'' United States v. (9th Cir.2004). Here, F.3d nei- prior Superseding "Issuing ther the 10.With one conviction for Information nor the In- charged specific drug quantity. dictment Bad Check” in Ameline was in criminal Nonetheless, change plea hearing history Category I.
977 similarly by are which “can We unconvinced by Congress, must be ratified the Guide any or all of or amend
revoke
government’s assertion that our review is
fit either within the 180-
it sees
lines as
States,
v.
by
barred
Edwards
United
523
any time.” Mis
waiting period or at
day
511,
1475,
118 S.Ct.
S.Ct. 647. See also
Supreme
prerogative
alone
[the
Court’s]
authority to
Congress has utilized this
n. 5.
precedents”); Agosti
to overrule one of its
reject
directly, twice
shape the Guidelines
Felton,
203, 237,
ni v.
521
117 S.Ct.
U.S.
by the
States Sen
ing attempts
United
(1997) (courts
1997,
L.Ed.2d 391
138
modify
powder
tencing
Commission
appeals
pre
must leave to “this Court the
sentencing ratio. More
to crack cocaine
decisions,”
rogative
overruling
its own
directly
recently, Congress acted
to amend
if
“appears
even
such decision
to rest on
pornogra
child
regarding
the Guidelines
rejected in
reasons
some other line
deci
judicial
depart
discretion to
phy, limiting
sions”) (citations omitted). However, we
changing
appellate
downward
that Ed
agree with the Seventh Circuit
criminal sentences.
of review of
standard
so,
it is not
wards did not do
and therefore
108-21,
Act,
117
Pub.L.
PROTECT
See
Booker, 375
an obstacle to our review.
(2003).
short,
668-69,
In
671-73
we
Stat.
508, 514,
1535858,
2004
at *4-5.
F.3d
WL
Circuit that
agree
“[t]he
with the Seventh
is the same
pattern
Guidelines]
[of
explicitly
stated
The Court
Edwards
statute, and it is
Washington
that in the
not,
not, and we do
consider the
“we need
the fact
that
hard to believe
statutory and consti-
petitioners’
merits of
by the U.S.
guidelines
promulgated
are
516,
claims.”
for the district that object drug conspiracy panel co- a of this court cannot overturn of the —either circuit jury’s precedent, previously and we have caine or cocaine base—when that ambiguous Sentencing held Guidelines do not was as to the general' verdict Petitioners, Apprendi. violate the rule of See Brief for United drug involved. See Hemandez-Guardado, (“Petitioners States v. 228 F.3d at *30-31 1997 WL (9th Cir.2000). However, 1026-27 jury determine are entitled to have an intervening Supreme when Court case the Petitioners illegal agreement what our in.”). previous holdings, undermines one of agreed participate formed and to subsequent panel may revisit issue argument was an about the Sixth This convening without an en banc court. See on 21 Amendment’s effect U.S.C. Gammie, Miller v. 335 F.3d 899-900 effect not the Sixth Amendment’s on the (9th Cir.2003) (en banc). light In of Blake Sentencing application of the Guidelines. ly, we are not bound Hemandez-Guar (“The government’s Id. at construction *32 (and cases’) subsequent rejection dado’s and the lower Section courts’ deci- challenge a Sixth Amendment to the sions, would violate Petitioners’ Sixth Guidelines. rights Process Amendment and Due to Therefore, we hold that the Sixth jury verdict on the unanimous offense of right in Blakely Amendment announced conviction.’’) added). (emphasis Edwards applies to imposed pursuant sentences argue did not that the Guidelines sentenc- Sentencing the Federal Guidelines. As ing scheme violated his Sixth Amendment such, Blakely’s we must consider effect indeed, trial; right jury Edwards Ameline’s sentence. presumed that had the identified Light C. Blakely, Was Ameline’s or
whether cocaine
cocaine base was the
Sentence Permissible Under the Guide-
object
conspiracy,
the district court
lines?
could
properly
quan-
have
determined the
tity
drug
jurisdiction
of the identified
at
Our
over Ameline’s
consistent with the Sixth Amendment.
necessarily requires
claim
us to
opine
guidelines’
“The Court did not
on the
determine the standard of review. Be
consistency with the amendment
object
because
cause Ameline did not
to his sen
consistency
challenged.
was not
It
grounds
tence on the
that the
did not rebuff a Sixth Amendment chal-
procedures
Guidelines or the
used to de
lenge
guidelines
to the
because there was
termine the material sentencing facts were
no
challenge
Sixth Amendment
to the
Apprendi,
unconstitutional under
or on the
guidelines.
obligated
are
ground
We
therefore to
that the material sentencing facts
make our own constitutional
indictment,
determina- were not
alleged
submit
Booker,
tion.”
jury,
ted to the
proved beyond
WL
or
a reason
doubt,
at *5.13
able
plain
we review for
error. See
-,
post-Blakely
scholarship sup-
The flood of
Rep.
(forthcoming
Fed.
See,
ports
e.g., Nancy King
this conclusion.
J.
2004) (available
June
http://sentencing.type-
Klein, Beyond Blakely,
& Susan R.
16 Fed.
-iiad.com/sentencingJiaw_and_policy/files/
-,
Sentencing Rep.
(forthcoming
n. 21
("Be-
bibas_blakelysJFederal_aftermath.pdf)
2004) (available
June
http://sentencing.type-
squarely
cause Edwards did not
resolve a
pad.com/sentencing-law-and-policy/
Blakely challenge, lower courts are not bound
("We
fileslkingklein-beyond-blakely.pdf)
agree
reject Blakely challenges
Guide-
Judge
point.”); Stepha-
Posner on this
lines.”).
Bibas, Blakely’s
Aftermath,
nos
Federal
*12
Cotton,
625,
(“Where
v.
535
628-
1544
United States
U.S.
S.Ct.
the law at the time of
(2002).
1781,
29, 122
Johnson v. United
520 U.S.
rights” “the error must have
prejudi
been
466-67,
1544,
117 S.Ct.
United States 732- PSR’s recommended base offense level of (1993). 33, 113 123 L.Ed.2d 508 all questions of whom raised serious above, As discussed determination regarding quantity the total at drugs (and Ameline’s point base offense level two tributable to Ameline. It cannot be seri upward possession enhancement for of a ously disputed that the lower standard of gun) by judge employing the district a proof affected outcome of his ultimate preponderance of the evidence standard sentence.14
was error Blakely. under Finally, the error affected the fairness of proceedings. discussing Ameline’s
Second, in determining whether the Blakely, fairness result the Court plain, error was explained the Court has stated: that it is sufficient for the error to be clear Any Apprendi’s
under the law as it exists at the time of evaluation of “fairness” Johnson, appeal. 117 compare See to criminal defendants must it (9th 14. We note that even without the benefit of offense level.” 894 F.2d Cir. Blakely, 1990); Charlesworth, we still would have vacated Ameline's see also United States v. specif- sentence because once Ameline raised (9th Cir.2000). By treat- ic, timely objections methamphetamine to the ing pre- the factual statements in the PSR as PSR, quantity gov- determination in the accurate, sumptively placing the burden rely ernment could not on the PSR to meet its them, disprove on Ameline to the district establishing burden of the factual basis for the government court relieved the of its sentenc- 2Dl.l(c). base offense level under U.S.S.G. required burden and Ameline to establish previously We held United States v. Howard the factual basis for a lower base offense level government that the the burden ”bear[s] PSR, than the one recommended in the thus proof any fact that the committing pre-Blakely error even in the era. necessary would find to determine the base sentence, then we must hold that the replaced, it in which line’s regime with warning in his defendant, no either Guidelines as a whole are unconstitutional. routinely see plea, or disagree.
indictment We sentence balloon potential maximum
his years to as much as Blakely ap little as five have held that from as We see U.S.C. imprisonment, life the district court plies procedure to the *13 841(b)(1)(A), (D), based not on facts §§ to determine Ameline’s base of followed beyond a reasonable peers to his proved 2Dl.l(c) § fense level under and the two trial doubt, facts extracted after but on pursuant to upward level enhancement compiled by probation a report a from 2Dl.l(b)(l). § do not invalidate either We likely judge thinks more officer who the 2Dl.l(c) §in the base offense levels or the got wrong. it than it got right 2Dl.l(b)(l). §in two level enhancement - -, Blakely, Rather, in a determining we hold that base 2542. 2Dl.l(c) § up or an offense level under 2D1.1(b)(1), § precisely happened what Ame- ward enhancement under
This is only admitted to a de- Although Blakely, line. he order to be consistent with those methamphetamine, of tectable amount jury a determinations must be made challenged reliability of the vigorously (or beyond by judge a a reasonable doubt in the PSR to
hearsay presented evidence waiver). jury proper with level, offense he was
increase his base by the district nonetheless sentenced notes, government As the this preponderance stan- judge based on application Blakely affecting the man significantly higher sentence.15 dard to a Sentencing ner in which certain Guide applied arguably lines be in tension will Therefore, we hold that the district § § 6A1.3 and 18 3742. The U.S.C. sentence after judge’s imposition of this § commentary explains 6A1.3 “The determining the material a pre Commission believes that use of evidence, of the rather by preponderance a ponderance of the evidence standard is jury’s a determination of relying than appropriate process require to meet due doubt, beyond a reasonable vio the facts policy resolving ments and concerns rights Amendment Ameline’s Sixth lated disputes regarding application Blakely. explained as
guidelines to the facts of a case.” To the D. Are Sever- Guidelines that, Blakely, predi extent as a result of able? cate factual determinations must be made by the reasonable doubt standard government argues that if we find before 2Dl.l(c) 2D1.1(b)(1) any § § facet of Amé- applicable ap- can be dence, Blakely's application likely to the will lead to more reliable infor- likely greater accuracy during sentencing process. Guidelines will lead to mation While sentencing. long theoretically disputed hearsay upon We have held "a defen relied clearly process right dant has a due not to be to increase Ameline's base offense level to 34 materially might on the incorrect sentenced basis have satisfied the district court that it not, Petty, likely information.” United States was more true than it is far less 1365, (9th Cir.1993). jury finding questionable reliability A certain that its (or beyond satisfy jury judge, assuming a reasonable doubt material sentenc district waiver) punish proper beyond facts that will increase the level of a reasonable ment, judge opposed making engaged as to a district doubt that Ameline had in distribu- findings by preponderance such of the evi- tion of those amounts. commentary plied, this conflicts with the ed those provisions which are within its Amendment and power, Sixth is unconstitutional independently not, of that which is applied in certain circumstances. part may Sec- the invalid dropped be if what is providing appellate tion 3742 fully operative review left is as a law.” Champlin of district sentences under the Refining Okla., Co. v. Corp. Comm’n of appears contemplate that it 286 U.S. 52 S.Ct. 76 L.Ed. (1932). is the district judge’s responsibility to As this implies, standard requisite findings
make the
of fact at sen-
issue is “essentially an inquiry
legisla-
into
3742(e) (courts
tencing. See 18 U.S.C.
tive intent.” Minnesota v. Mille Lacs
appeals
give
regard
Indians,
“shall
due
to the Band
Chippewa
opportunity
the district court to
119 S.Ct.
We with the “presump Sentencing The pro- Guidelines will still tion ... severability,” favor of a pre goal mote this if requirements even the
sumption that is based on by the idea that “a fact finding preponderance
court should refrain from invalidating violating evidence are severed as more of the statute than is necessary” Sixth Amendment circumstances like because ruling unconstitutionality “[a] confronting those Ameline. The Sentenc- frustrates the repre ing intent of the elected Guidelines seek to achieve these Con- Time, sentatives of people.” Regan objectives gressional they because contem- 641, 652-53, plate 104 S.Ct. given similar sentences once a set of (1984). L.Ed.2d 487 Reflecting pre this Although are found to exist. sever- sumption, the determining test for change sever- ance would how those facts are ability provides that determined, whom, it is evident “[u]nless and severance Legislature that the would not have enact- Congressional would have no effect on the findings, prepon- that a make consistency of sentences achieving goal would be of the evidence standard con- derance offense similar that involve in cases procedures similar employed, or even that Blake- fact, to hold that we were duct. In and employed be for enhancements would the Guidelines application ly precludes proce- unless such departures17 downward vio- greater do far whole, would we as a honesty, goals of were critical to the merely dures than if we intent Congress’ lence to As ex- uniformity proportionality. procedural re- the unconstitutional excised above, they are not. plained to establish reluctant quirements. We are sentenc- an indeterminate judicial fiat argu- only attempt government’s The Absent ing scheme.16 govern- unavailing. otherwise is system to a Guidelines, return we would un- that severance would suggests ment sentencing with all of its indeterminate though even uniformity because dermine Rather than under- problems. attendant may have committed similar defendants severance fa- objectives, Congress’ mining crimes, likely impos- be “[i]t similar them.
cilitates
matter,
sible,
charge
practical
as a
jury beyond a reasonable doubt
prove to a
course,
as the
It
is true
in all cases.”
enhancing
all
factors
argues,
government
words,
in fact
who were
other
defendants
exact
not function
will
*15
differently be-
might be treated
similar
they
pre-Blakely.
did
manner as
same
less able in
government may
the
be
cause
part of
facts as
a defendant admits
Unless
persuasion
to fulfill its burden of
one case
sentencing,
or waives
plea or
guilty
his
This,
course, also
in another case.
of
than
will
jury, juries,
judges,
not
to a
right
his
judges
occurred when district
determined
findings,
factual
material
make the
a
sentencing
on the basis of
material
higher
a
they
employing
do so
will
preponderance of the evidence standard.
the test for sever-
proof.
of
But
standard
however,
Guidelines,
seek
not,
government
the
seems to
as
ability is
providing a
uniformity by
to promote
will function
the statute
suggest, whether
encourages
that
similar sen-
structure
way
operated
it
before
identically to the
for
with similar offense
tences
defendants
were severed.
objectionable provisions
Although
goal may be elu-
conduct.
that
severance,
test for
actually were the
If this
reluctant,
instances,
in
are
in
sive
some
we
appropriate.
never be
severance
Congress’
goals,
declared
light
aban-
Rather,
is “whether the statute
the test
completely
don
in a manner consistent with
function
will
in this case.
Airlines,
Congress.” Alaska
the intent
Brock,
Indeed,
107 S.Ct.
Blakely
contemplate
Inc.
seems to
(1987).
In terms of
can
to determinate
holding
apply
the Sixth tempt to hold Ameline responsible for did not rule 1,603.60 grams of methamphetamine, Sentencing Reform Act Washington’s maximum sentence the district court could face, unconstitutional on its rather was impose on Ameline at resentencing could of the statute which only aspects solely be based on his admissions.18 by a
required prepon- a to find facts derance of 'the evidence that increased the However, government should the punishment beyond the standard level higher seek to obtain sentence for the in violation of the range were Sixth conviction, offense of may district court Amendment. sentencing jury try convene a drug sum, government has failed issues, which, quantity and firearm if prov presumption overcome the favor sev- beyond doubt, en may reasonable be Moreover, erability. severance does not used to increase Ameline’s sentence.19 As Congress’ enacting interfere with intent noted, the Seventh Circuit Booker feder contrary, preserv- To the the Guidelines. long al courts have employed bifurcated provisions the essential the Guide- juries in capital punishment context, as constitutionally infirm lines that are not jury well as the civil context where Congressional by pre- will effectuate intent determine may only damages once it has venting days a return to the of indetermi- separately liability. determined “There is sentencing. nate novelty separate no in a jury trial with Proceedings E. Remand On sentence, regard just to the there is no novelty in a bifurcated trial.” 375 conclude that has Because we *16 1535858, *5; F.3d 2004 at see WL jury the to have a decide facts right the Khan, also United States v. underlying the of determination his base (E.D.N.Y. July Dist. 13192 at *16 LEXIS his
offense level and two level firearm 2004) 12, doubt, (noting beyond enhancement a the success of the bifur reasonable cases).20 judg- jury system we must reverse the district court’s cated in capital course, only may right
18.We note that while Ameline admitted 19. Of Ameline waive to his jury try a and the methamphetamine factual issues before the to a detectable amount of court, determining with the court the facts change plea hearing, at his of the sentenc- beyond a reasonable doubt. ing hearing having he testified to distributed methamphetamine four and a half ounces of application Blakely 20. The to a district However, this connection with offense. sentencing obviously court's determination mistakenly the time Ameline testified he depending upon procedural pos- differs the thought regarding drug proof the burden of given pending ture of a case. In cases quantity preponderance was the evidence. Ameline’s, appeal upon direct such as re- Moreover, already the district court had com- mand, may a district court either sentence a by requiring disprove mitted error Ameline to defendant on the basis of the facts contained PSR, drug quantities the described in the in- plea agreement, during in the admitted accurately placing persuasion the burden of plea colloquy sentencing, by or at or found may on the defense—which well have moti- jury beyond a doubt. A dis- reasonable testify. light vated Ameline to of these may special a trict court also convene sen- errors, we allow the court to decide in district tencing jury necessary. if In cases where commenced, the first instance whether Ameline’s state- already a district trials have sentencing hearing guilt penalty ments at the may constitute and bifurcate Blakely purposes. phases, separate admissions for or convene 984 III. resentencing remand for decision
Our con jeopardy double by precluded is not Conclusion v. See, Pennsylvania Gold e.g., cerns. sentence is VA- Accordingly, Ameline’s 353, 28, 88 106 S.Ct. hammer, 474 U.S. for resentenc- REMANDED and CATED (1985). Unless the 183 L.Ed.2d opinion. this ing consistent with by government proven sought to be ele sentence constitute Ameline’s enhance GOULD, dissenting. Judge, Circuit to be statutory required offense of a ments require conclusively Blakely does not indictment, the con original in the alleged constitutionally invalid the that we hold jeopardy of double prohibition stitutional Const, of the Federal application implicated. U.S. be (“Guidelines”) Ameline. The Guidelines V, cl. 2. amend. prior opin- Supreme Court’s States United sentence of a new Imposition constitutionality of upheld ions have punish a second on remand constitutes II.A of I Part agree the Guidelines. with Jeopardy Double in violation ment opinion United States the Fifth Circuit’s legiti has if the defendant only Clause 464, Pineiro, 1543170 F.3d 2004 WL v. 377 finality original in his expectation mate (5th 12, 2004), im- analyzing the July Cir. time his new sentence by sentence holding that and pact Radmall, v. 340 States imposed. United I affected it. also are not Cir.2003); (9th v. Stone God F.3d 800 v. in United States agree the dissent (9th Cir.1990); behere, F.2d Booker, 508, 515-21, 2004 WL 375 F.3d McClain, F.3d States United 2004) (7th July Cir. at *6-*ll Cir.1997). (9th no A defendant has (Easterbrook, J., rea- dissenting). While finality a sen expectation legitimate disagree on the jurists may now sonable direct places issue he tence which reasoning of impact of the long-range v. Moreno-Her States appeal. United run Blakely, in the short remain bound we (9th Cir.1995). nandez, until apply Guidelines unless his sen directly appealed has holds otherwise.1 Court therefore, legiti cannot tence, have Supreme Court had Thus, Blakely, the finality. imposi Before expectation mate by the courts bound held that federal are on remand would a new sentence tion of *17 policy their statements Guidelines and a Double violation the not constitute commentary. v. United and See Stinson Jeopardy Clause. Moreover, trial, necessary the district awaiting those facts. Finally, district
jury. in cases fully jury judge the as will be able to instruct options discussed may utilize the courts Bibas, factfinding generally, above, role. give jury a to its See may elect to they or the supra at 978. n. 13 special form if the introduction verdict sentencing is not excluded to evidence related unduly Unlike in prejudicial majority's analy- or irrelevant. Though disagree 1. I with the pipeline appellate when were in impact Blakely, cases that the and believe the sis of the had al- apply or where trial properly was decided the Guide- district court could total, currently awaiting ready begun, a case trial vacate Ameline's in lines I still in (or approv- theory: dis- with the court's under a different The the court counsel sentence al) jury shifting govern- may potential from the voir members trict court erred in dire proof Counsel burden of for the responsibility in mind. ment Ameline the their new to drug closing Report opening about the Presentence will be able use their and agree majority's sentencing quantity. with the observa- arguments relevant I to address 14. relating issue its tion this footnote facts and to introduce evidence
985 States, 36, 42, 1913, (1998), 508 U.S. 113 S.Ct. 123 Breyer Justice wrote for a unani- (“The (1993) principle L.Ed.2d 598 Supreme the mous Court in a case considering binding Manual is on federal the respective powers judges juries applies policy courts as well state- in the context of the Guidelines. The Su- ments.”). Supreme prior preme Court’s upheld Court a higher sentence im- opinions upheld also have posed the Guidelines on a defendant for crack-related ac- against challenge a constitutional to con- tivities despite that jury the had convicted gressional delegation power judi- to the defendant on an ambiguous the instruction ciary through the involving Commission. cocaine or crack. The Court See, States, e.g., Mistretta v. United held in no uncertain terms that “[t]he Sen- 361, 647, U.S. tencing L.Ed.2d 714 Guidelines instruct the
(1989). The Court has further held that
case like this one to determine both the
judges may
federal
find facts that require
amount and the kind of ‘controlled sub-
higher sentences under
the Guidelines.
stances’ for which a defendant should be
See,
Watts,
e.g.,
United States
519 U.S. held accountable—and
impose
then to
633,
117 S.Ct.
(1997) curiam) (per (upholding an enhance- amount and kind.” Id. 118 S.Ct. possession ment for gun of a connection 1475. The Court reasoned that the en- drug offense, with a though even the hancement was constitutional because it acquitted had the defendant on the fire- did push over petitioner statutory the States, charge); arms Witte v. United 515 limit for a cocaine-only conspiracy.2 389, 401-03, 115 S.Ct. Against this, the majority argues all (1995) L.Ed.2d 351 (upholding higher Supreme precedents Court’s applying Guidelines sentence on a defendant con- enforcing the Guidelines count for possessing marijuana
victed of
based on nothing
explicitly
because none
addresses
judge’s finding
that the offender also
precise
Sixth Amendment
issue that
participated in
uncharged
an
cocaine con-
Blakely.
was
focus of
There is some
Mistretta,
spiracy).
Watts,
While in
and force in
argument.
this
But it seems odd
Witte,
Court did not deal
twenty years
to hold that
regime
of a
explicitly with a Sixth Amendment chal-
reform,
implemented by Con-
lenge, nothing the Court said in those
gress
upon by
and elaborated
judiciary
any
cases cast
constitutional shadow on the
through
Commission,
is
Guidelines.
swept away by
reasoning
of Blakely, a
States,
In Edwards v. United
523 U.S.
case that expressly says it does not ad-
118 S.Ct.
Rather,
L.Ed.2d 703 dress the Guidelines.3
it
prema-
unpersuasive
majority's
2.
I find
Apprendi
Jersey,
distinc-
In first
v. New
challenge
judge-
tion between Edwards's
(2000),
120 S.Ct.
ture to Hoffman (9th Cir.2001), 523, recognized and we respect.4 Such any in the Guidelines that “it is maintaining applied Agostini, impact on the decision, drastic its engage anticipatory in place to poten- not our law and of criminal administration Pa States v. cases, overruling.” See also United my in of thousands tially on tens (9th 411, 414 Cir. checo-Zepeda, 234 F.3d Supreme from the come should view 2000) permit us to does not (“[Speculation all. or not at Court, Congress,5 or from authori controlling Supreme Court ignore previ Court has Supreme Because if here fol better we ty.”). It would be Sentencing Guidelines ously upheld spirit of the the letter and lowed challenges, we constitutional varied against Agostini. pronouncement Court’s course of overrule this properly cannot I those who would Although understand of a new directive anticipation precedent majority opin- of the logic that the This contend yet not issued. has that the Court col- my the result Blakely compels abundantly clear ion is power our limit on reach, life of the law has leagues precedent. “[t]he Supreme Court prior from observed, Felton, Holmes logic,” Justice
See, been Agostini v. e.g., (1997) experience.” Oliveh WeN- “it has been 237, 117 L.Ed.2d 391 (1881). Law 1 The Common Holmes, to this “leav[e] courts to (instructing lower dell experience of our federal Considering overruling its own prerogative Court the sentencing reform un- decisions”) system with Quijas Rodriguez de (quoting Inc., twenty years, the Guidelines Express, 490 der v. Shearson/American friendly to precedent prior Supreme Court 477, 484, 104 L.Ed.2d 109 S.Ct.
U.S.
Guidelines,
Khan,
array
disruptive
and the
522 the
(1989));
v.
Oil Co.
State
necessarily follow in Blake-
issues that will
U.S. Guidelines,6 applied if it to the (1997). ly ’s train prec- has followed this Our Circuit July Judiciary Committee’s majority holding the Senate as fatal characterized entitled, Guidelines, "Blakely Washington by hearing their na- dissents cannot necessary impact aof ma- Future of the Federal ture determine the and the Guidelines,” holding. history http://judiciary.senate. of our crimi- jority With the sentencing policy process, federal gov/hearing.cfm?id=1260. nal law Senate Judi- prior Supreme Court's since and the ciary hearing opened with state- Committee’s Chairman, concerning Hatch, inform- precedents the Guidelines its ments Senator Orrin views, bypass we should hesitate our Leahy, Ranking Dem- and Senator Patrick constitutionality that must presumption of Testimo- ocratic Member of the Committee. given the Guidelines. now be followed, also de- ny with written statements posited The written statements in the record. cataloguing "blog” 4. internet Wil- For available on the website include those developments relating Blakely, Mercer, Attorney detail recent U.S. for District of liam Policy” "Sentencing Law and Attorney see and Chairman of the Gen- Montana http://sentencing.typepad.com, a website of Advisory Committee to the Senate Judi- eral’s Douglas A. Berman of the Moritz Committee; Professor ciary Judge K. Sessions William University. College State of Law at The Ohio Steer, John Vice Chairs III and Commissioner Commission; Judge Paul Cassell, Congress Judge moot the current con- can render District for the District of stitutionality by legislating Utah; a different Judge issues Lawrence Chief U.S. District light Blakely. Dakota; approach in the the District of South Pro- Piersol for *19 Bowman of the Indiana Univer- fessor Frank Law; sity Ra- School of Assistant Professor general complexity overview of in- 6. For Guidelines, University the New York Blakely chel Barkow of applying to the volved in Law; Attorney Alan testimony School of former offered see the statements and Supreme I conclude that the Court itself is if proper Court to decide the Guide- infirm in constitutionally any
lines are fun- way.7
damental
I respectfully dissent. GAGAN, Plaintiff-Appellee,
James
Lajunta Monroe, Intervenor-Appellant, SHARAR; Monroe,
Victor A. James
Defendants-Appellees.
No. 02-15449. Appeals,
United States Court of
Ninth Circuit.
Argued May Submitted 2003. July
Filed 2004. Weich, Vinegrad; Special (D.Utah and Ronald former July WL at *12 Counsel to the U.S. 2004). Commission. majority's view that the Guide- expert proliferat- With multitude of voices constitutionally applied lines cannot be here topic, my on this nascent view it is to determine the level of criminal offense or prudent to await the Court's resolu- particular determine enhancement raises issue, presents tion opportu- for that an questions severability. ap- Given that the Court, wishes, nity where the if it can offer plication Blakely may to the Guidelines guidance ancillary more may issues that require, among things, changes other flow applied from if it is to be to the grand jury procedure, arraign- new forms of Guidelines. ments, plea colloquy procedures, revision of issues, resolution of novel evidence and trial constitutionally If the Guidelines are invalid instructions, whole new possibly forms of part Blakely’s in whole or in under reason- sentencing, a bifurcated trial for and decision ing, then I would have reservations whether perhaps on a host of yet other issues my colleagues thinking any are correct identified, may questioned it be nonetheless constitutional vice is severable from the Congress whether and the Com- Guidelines as a whole. For a discussion of system mission could have intended that the topic, Judiciary this see the Senate Committee they proceed majority created should as the testimony of Professor Frank Bowman of the School, modify University it. Because I would hold the of Indiana Law and Dis- Judge trict opinion Paul Cassell's in United constitutional in the case before Croxford, us, F.Supp.2d States v. severability, I need not reach this issue of *20 Bosco, Ostlund, Tiffany &
Dow Glenn Phoenix, AZ, P.A., appellant. for Yast, Joseph of C. Law Office Joseph C. Northfield, Ill, Yast, appellee. for the KLEINFELD, CANBY, and Before: RAWLINSON, Judges. Circuit KLEINFELD, Judge. Circuit in a com- execution This case concerns ob- judgment of a munity property state law state. tained in a common
Facts underlying this case has dispute subject published of two already been the Circuit, we by the so decisions Seventh from those decisions. take our funds Gagan substantial James invested fund, build, partnership a limited systems. James operate cable television partner. Monroe general Monroe was money that siphoned off and his associates to, Gagan sued Gagan was so them entitled Court for the in the District United States on RICO and District of Indiana Northern theories. The other state and federal Gagan court directed some verdict of the claims to a claims and sent the rest trials, eventually Gagan jury. After two judgment against won a million Mon- $1.7 judgment ap- was affirmed on roe. The peal.1 Gagan pay Gagan,
Monroe did attempts frustrated in his execute was trying judgment. on the After unsuecess- Cablevision, Inc., and, acknowledging my misgivings, Gagan though v. American Cir.1996) (7th I”). ("Gagan F.3d 951 judgment. reserve