United States v. Paul H. Schneider

429 F.3d 888, 2005 U.S. App. LEXIS 24841, 2005 WL 3078587

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2005
• Docket: 03-30527
• Status: Published

Opinions

TROTT, Circuit Judge.

Paul H. Schneider appeals his ten-month prison sentence entered after his conviction for theft of government money in violation of 18 U.S.C. § 641 and Social Security fraud in violation of 42 U.S.C. § 408(a)(4). Schneider contends that (1) his Sixth Amendment rights were violated because his sentence was enhanced by judge-found facts under the then-mandatory United States Sentencing Guidelines (“U.S.S.G.”); (2) the district court erred in denying him a downward departure for diminished mental capacity under U.S.S.G. § 5K2.13; and (3) the district court erred in denying him an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1.

We remand to the district court for proceedings consistent with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). The sentencing court adjusted upwards the guideline range by six levels because the court determined that the amount of loss exceeded $30,000, but was less than $70,000. See U.S.S.G. § 2B1.1(b)(1)(d). The jury made no finding regarding the amount of loss beyond $1,000. Under Ameline, when, as here, “the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at 1074. Accordingly, we remand to the district court with instructions that the court follow the procedures outlined in Ameline. See id. at 1084-85.

Having determined that an Ameline remand is required, we do not address Schneider’s remaining sentencing challenges.¹

REMANDED.

1 . We respectfully disagree with our able colleague’s analysis of the district court’s refusal to depart under § 5K2.13 of the Sentencing Guidelines. However, we need not formally respond to our colleague’s analysis given that we all agree that an Ameline remand is necessary.