Appeal from the United States District Court for the Central District of California. David O. Carter, District Judge, Presiding. D.C. No. CR-02-00319-DOC.
The opinion of the court was delivered by: Thompson, Senior Circuit Judge
Argued and Submitted April 7, 2009 -- Pasadena, California.
Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Jeremy D. Fogel,*fn1 District Judge.
This appeal presents the question whether, on a limited Ameline remand, a district court may consider post-sentencing factors and circumstances in determining whether it would have imposed the same sentence had it known the Sentencing Guidelines were advisory.
Gabriel Bernardo Sanchez ("Sanchez") was convicted of thirty-three counts of mail fraud and eleven counts of money laundering, in connection with an extensive charitable donation scam. Sanchez and his partner formed a "shell" church, and then employed telemarketers to solicit donations on behalf of the church's purported charities. Of the millions of dollars raised through this scam, less than $5,000 actually was used for charitable purposes.
Sanchez was sentenced under the mandatory Sentencing Guidelines, before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). Sanchez appealed both his conviction and his sentence; we rejected those challenges, but granted Sanchez a limited remand under United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc). See U.S. v. Lyons, 472 F.3d 1055 (9th Cir. 2007).
On remand, both parties submitted briefing as to whether resentencing was required. The district court requested additional briefing as to whether it could consider Sanchez's post-sentence rehabilitation efforts on a limited Ameline remand. Sanchez appeared and addressed the court on his rehabilitation efforts.
The district court concluded that it could not take post-rehabilitative efforts into account on a limited Ameline remand. The court then determined that it would have imposed the same sentence had it known the Guidelines were advisory.
After the district court announced that Sanchez's original sentence would stand, Sanchez asked the court to recommend that he participate in the residential drug and alcohol treatment program of the Bureau of Prisons ("BOP"). The district court denied that request, citing Sanchez's failure to raise the issue at his original sentencing hearing.
On appeal, Sanchez argues the district court erred in determining that it could not consider post-sentencing factors on an Ameline remand. Sanchez also contends the court erred in denying his ...