FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-50597
Plaintiff-Appellee,
v. D.C. No.
CR-02-00185-AHS
DAVID FREDERICK THORNTON,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
August 8, 2007—Pasadena, California
Filed January 10, 2008
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and James K. Singleton,*
Chief District Judge.
Opinion by Judge Berzon
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
349
352 UNITED STATES v. THORNTON
COUNSEL
W.C. Melcher and William Paul Melcher, Melcher, Melcher
& Melcher, Woodland Hills, California, for the appellant.
George S. Cardona, Acting United States Attorney, Thomas
P. O’Brien, Chief, Criminal Division, & Curtis A. Kin, Chief,
Domestic Security and Immigration Crimes Section, U.S.
Department of Justice, Los Angeles, California, for the appel-
lee.
OPINION
BERZON, Circuit Judge:
David Thornton appeals from the district court’s decision
to not re-sentence him after a limited remand pursuant to
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc). He challenges both the ruling on remand and certain
issues with respect to the original sentencing.
UNITED STATES v. THORNTON 353
I.
Over the course of several years, Thornton successfully
defrauded friends, family members, and complete strangers
out of hundreds of thousands of dollars. He used two
schemes: The first involved a charitable foundation he estab-
lished purportedly to raise funds for kidney research for the
University of Southern California (“USC”). In return for the
funds raised, USC paid Thornton a salary and covered the
administrative costs of the fundraising. Although Thornton
turned over to USC some of the funds raised, he kept about
$150,000 for his own purposes. He also charged more than
$25,000 to credit cards taken out on behalf of his foundation
and USC, although USC never authorized any joint credit
cards. For about a year after USC terminated its relationship
with Thornton and his foundation, Thornton continued fraud-
ulently to solicit funds.
In the second scheme, Thornton purported to be working
for the United States government on various top secret mis-
sions, mostly involving channeling Nigerian money into the
United States. Thornton explained to his victims that these
transactions required heavy financing but would result in huge
returns. Many friends and family members believed the tale,
and Thornton bilked them out of hundreds of thousands of
dollars. He also unsuccessfully attempted to cash a counterfeit
check for $25 million, purportedly from the Nigerian govern-
ment.
Thornton was indicted and pleaded guilty to two counts of
mail fraud, two counts of wire fraud, and one count of imper-
sonating a federal officer. The district court sentenced him to
96 months, around the mid-point of the Sentencing Guidelines
range. The Guidelines calculation included a 16-level
enhancement for amount of loss, USSG § 2F1.1(b)(1)(Q),1
1
USSG § 2F1.1 was repealed in 2001. Because of ex post facto concerns
with applying higher loss adjustments enacted in the 2001 revisions, the
parties agreed that the 2000 Guidelines should apply. All citations to the
Guidelines herein are to the 2000 Guidelines.
354 UNITED STATES v. THORNTON
which included the unsuccessful attempt to cash the $25 mil-
lion check as intended loss. The calculation also included a
two-level enhancement because the offense involved a mis-
representation that Thornton was acting on behalf of a charity,
USSG § 2F1.1(b)(4)(A), and a two-level enhancement for
abuse of trust, USSG § 3B1.3.
Thornton appealed the sentence, challenging, inter alia, the
loss calculation and the enhancement for abuse of trust. While
his appeal was pending, the Supreme Court held the manda-
tory Guidelines unconstitutional and directed that the Guide-
lines are to be advisory only. United States v. Booker, 543
U.S. 220 (2005). In an unpublished memorandum disposition,
this Court remanded Thornton’s appeal to the district court for
proceedings consistent with United States v. Ameline, 409
F.3d 1073 (9th Cir. 2005) (en banc). See United States v.
Thornton, 176 Fed. Appx. 765 (9th Cir. 2006). Although the
memorandum disposition also disposed of one issue raised by
Thornton regarding restitution, it did not mention or address
his challenges to two sentencing issues affecting the length of
incarceration, the loss calculation, and the abuse of trust
enhancement.
On remand, the parties submitted position papers. Thornton
raised the same issues he had raised on appeal, and also
claimed that a pre-existing kidney condition had deteriorated
to the point that he needed medical care — a kidney trans-
plant and possible liver transplant — that the Bureau of Pris-
ons (“BOP”) could not provide. The district court’s decision
set forth the contentions of the parties and concluded that the
sentence would not have been materially different had the
Guidelines been advisory at the time of sentencing.
In the current appeal, Thornton argues certain issues raised
but not decided on his first appeal, namely, that the district
court erred by (1) including the $25 million check in the
amount of loss calculation and (2) applying the abuse of trust
enhancement. He also argues that the district court did not
UNITED STATES v. THORNTON 355
adequately obtain the views of counsel on remand and that its
consideration of the sentencing goals and purposes set forth
in 18 U.S.C. § 3553(a) was inadequate.
II.
A.
Thornton raises two issues argued but not decided on his
first appeal. The government suggests that it is unclear
whether these issues are properly before us or whether,
instead, they were implicitly rejected on the first appeal. We
hold that they are properly here.
Ameline directs that where Booker issued after a defendant
was sentenced but while his appeal was pending and where he
raised no challenge to the mandatory Guidelines below, this
Court should remand to the district court to determine
whether, had the Guidelines been advisory at the time of sen-
tencing, the sentence would have been materially different.
Ameline, 409 F.3d at 1079. The purpose of the remand is to
assist this Court’s review of the defendant’s Booker claim. In
these cases, because the defendant did not raise a Booker-type
claim below, review on appeal is for plain error.2 See id. at
1078. After Booker, there is error that is plain if a defendant
was sentenced under mandatory Guidelines and had her sen-
tence enhanced on the basis of judge-found facts. The
Ameline remand helps this Court ascertain whether the error
affected substantial rights, by determining whether the sen-
tence would have been different under advisory Guidelines.
See Ameline, 409 F.3d at 1078-81. Moreover, if the sentence
2
Plain error is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] sub-
stantial rights.’ ” Johnson v. United States, 520 U.S. 461, 467 (1997)
(alterations in original) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). If these conditions are met, an appellate court may exercise its
discretion to correct the error “only if (4) the error ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’ ” Id.
356 UNITED STATES v. THORNTON
would have been materially different had the district court
known the Guidelines were advisory, the integrity, fairness,
and public reputation of the proceeding — the fourth plain
error prong — will have been seriously affected. Id. at 1081.
For purposes of judicial efficiency, Ameline directs that when
a district court determines that the defendant’s sentence would
have been materially different under an advisory Guidelines
system, the court can simply vacate the sentence and resen-
tence the defendant on remand treating the Guidelines as
advisory. Id. at 1080. These are the narrow parameters of an
Ameline remand; it is not an occasion to begin the sentencing
proceedings entirely anew. See id. at 1084-85; see also United
States v. Combs, 470 F.3d 1294, 1297 (9th Cir. 2006) (“The
limited [Ameline] remand procedure left no room for the dis-
trict judge to consider new objections to the original sentence
— objections defendant could have raised the first time
around, but failed to do so.”).
[1] Ameline does not directly address the fate of sentencing
issues raised but not decided in the first appeal. Post-Ameline
cases have treated non-Booker sentencing issues raised on
appeal in different ways: In some instances, we ruled on these
issues before remanding to the district court under Ameline on
the Booker plain error question. See, e.g., United States v.
Fifield, 432 F.3d 1056 (9th Cir. 2005). In others, as here, we
simply remanded under Ameline without ruling on the non-
Booker issues that had been raised initially.
The latter approach recognized that if the defendant is re-
sentenced on remand, other sentencing issues may become
moot or change complexion. For example, here, the district
judge could have concluded on the Ameline remand that, had
she known that the Guidelines were not mandatory, she would
have sentenced Thornton more than two levels below the
Guidelines. If that had happened, then Thornton would have
had little reason to continue to pursue his argument about the
two-level abuse of trust enhancement. Indeed, as the Supreme
Court has recently explained, in some circumstances district
UNITED STATES v. THORNTON 357
courts have authority under Booker to disavow a Guidelines
enhancement on policy grounds and refuse to apply it. United
States v. Kimbrough, ___ U.S. ___, 2007 WL 4292040, at *14
(Dec. 10, 2007). Had the district court properly done so with
respect to a Guidelines enhancement on Thornton’s Ameline
remand, the Guidelines challenge on that ground would have
become moot.
[2] The failure to address on appeal Thornton’s sentencing
issues raised before remanding under Ameline was therefore
in no way indicative of a rejection of his challenges in the first
appeal to the Guidelines calculations. See United States v.
Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (“For the [law of
the case] doctrine to apply [and preclude reconsideration of an
issue], the issue in question must have been decided explicitly
or by necessary implication in the previous disposition.”)
(quoting Herrington v. County of Sonoma, 12 F.3d 901, 904
(9th Cir. 1993)). Instead, the original panel was evidently of
the view, as were many other panels of this court ordering
Ameline remands, that the sentencing challenges were best
considered as a whole after the Ameline remand, as they
might alter after the remand. We therefore do not construe a
failure to address these issues on the first appeal as an implied
ruling on their merits.
[3] Although Ameline is not explicit on the matter, it gives
no indication that this procedure is inconsistent with its direc-
tives. Further, a subsequent case discussing the implications
of Ameline appears to contemplate this procedure. In Combs,
we held that our review for “reasonableness” after an Ameline
remand is confined to determining whether “the district judge
properly understood the full scope of his discretion in a post-
Booker world.” 470 F.3d at 1297. This holding was expressly
limited, however, to the particulars of Combs’ situation, in
which “[a]t no time during his first appeal did defendant chal-
lenge the reasonableness of his sentence.”3 Id. at 1295. This
3
Determination that the district court properly calculated the Guidelines
range is part of Booker’s reasonableness review. See Gall v. United States,
___ U.S. ___, 2007 WL 4292116, at *7 (Dec. 10, 2007).
358 UNITED STATES v. THORNTON
limitation suggests that if a sentencing challenge was raised
but not decided on the first appeal, it is preserved for full
review after an Ameline remand. See also United States v.
Williams, 475 F.3d 468, 476 (2d Cir. 2007) (“[W]hen we have
reached the Guidelines issues — or other sentencing issues —
raised by defendants in their initial appeal, further challenges
to our resolution of these issues after a district court has
declined to resentence pursuant to Crosby will be foreclosed
by the law of the case.”) (emphasis added).
[4] Thus, we now expressly hold that where sentencing
issues are raised but not decided in an appeal prior to an Ame-
line remand, those issues are properly before the Court on any
subsequent appeal from the Ameline remand, along with any
challenges to the results of the Ameline remand itself.
B.
[5] Thornton challenges the inclusion of the $25 million
counterfeit check in the amount of loss enhancement. As he
signed a plea agreement expressly agreeing that the total loss
was close to $26 million, he affirmatively waived this issue.
See United States v. Olano, 507 U.S. 725, 732-33 (1993). We
therefore do not reach it.
C.
Thornton also challenges the two-level enhancement for
abuse of trust. Thornton did challenge this enhancement at the
original sentencing and we review its application.4
[6] The abuse of trust enhancement applies where the abuse
4
Before Booker, we reviewed the application of the abuse of trust
enhancement — a mixed question of law and fact — de novo. See United
States v. Brickey, 289 F.3d 1144, 1153 (9th Cir. 2002). Although the same
standard of review may well apply after Booker, we need not decide the
issue. Under any standard of review, the enhancement was not error.
UNITED STATES v. THORNTON 359
of a position of trust “facilitate[s] significantly the commis-
sion or concealment of a crime.” USSG § 3B1.3, cmt. back-
ground. A position of trust is “characterized by professional
or managerial discretion . . . . Persons holding such positions
ordinarily are subject to significantly less supervision than
employees whose responsibilities are primarily non-
discretionary in nature.” Id., cmt. n.1 (comparing, i.e., a bank
executive to a bank teller). The position need not be that of
a fiduciary. See United States v. Velez, 185 F.3d 1048, 1051
(9th Cir. 1999) (citing United States v. Garrison, 133 F.3d
831, 839 n.18 (11th Cir. 1998)).
[7] Thornton does not contest that he held a position of
trust with respect to USC by virtue of his position as president
of a charitable foundation paid by USC to raise funds for it.
Nor does he deny that his abuse of this position of trust
allowed him more easily to commit the offenses. For exam-
ple, he deposited donations made to the foundation directly
into his checking accounts, then used some of those funds for
his personal use, a diversion of funds that could not have
occurred had his financial transactions or those of the founda-
tion been closely supervised.
[8] Thornton does argue that when he solicited funds after
USC terminated its relationship with his foundation he was no
longer in a position of trust. But most of the fraudulent con-
duct relating to the purportedly charitable foundation took
place before USC terminated its relationship with Thornton.
The enhancement is thus entirely appropriate.
Thornton also contends that the application of both the
abuse of trust enhancement and the enhancement for an
offense involving a misrepresentation that he was acting on
behalf of a charitable organization, USSG § 2F1.1(b)(4), was
impermissible double counting. Impermissible double count-
ing “occurs where one part of the Guidelines is applied to
increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by the applica-
360 UNITED STATES v. THORNTON
tion of another part of the Guidelines.” United States v. Speel-
man, 431 F.3d 1226, 1233 (9th Cir. 2005) (quoting United
States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993)). There is
“nothing wrong with ‘double counting’ when it is necessary
to make the defendant’s sentence reflect the full extent of the
wrongfulness of his conduct.” Reese, 2 F.3d at 895.
The enhancement for representing falsely that a defendant
is working on behalf of a government agency or charitable
organization recognizes that “defendants who exploit victims’
charitable impulses or trust in government create particular
social harm.” United States v. Romero, 293 F.3d 1120, 1126
(9th Cir. 2002) (quoting USSG § 2B1.1, cmt. background).
The abuse of trust enhancement, in contrast, recognizes that
“persons who abuse their positions of trust or their special
skills to facilitate significantly the commission or conceal-
ment of a crime . . . generally are viewed as more culpable.”
USSG § 3B1.3 cmt. background.
[9] Here, Thornton not only represented that he was work-
ing on behalf of a charitable foundation and thereby encour-
aged contribution from members of the public, he also abused
the authority USC entrusted in him as the president of the
foundation to facilitate the commission and concealment of
his fraud. The false representation that he worked for a charity
harmed members of the public; the abuse of his position as
the foundation’s president harmed USC. As “[t]he two
enhancements stemmed from separate concerns,” the abuse of
trust enhancement was not impermissible double counting.
See United States v. Christiansen, 958 F.2d 285, 288 (9th Cir.
1992) (enhancements for abuse of trust and more than mini-
mal planning did not constitute impermissible double count-
ing).
III.
Thornton also challenges the district court’s ruling on the
Ameline remand. We narrowly review a district court’s deter-
UNITED STATES v. THORNTON 361
mination, pursuant to an Ameline remand, that the sentence
would not have been materially different had the Guidelines
been advisory at the time of sentencing. Our review asks only
“[w]hether the district judge properly understood the full
scope of his discretion in a post-Booker world.” Combs, 470
F.3d at 1297.
Thornton argues that the district court did not properly con-
sider his medical condition and the lack of appropriate care
available through the BOP. By failing to grant Thornton’s
request for an independent medical evaluation, Thornton
maintains, the district court did not fully obtain the views of
counsel as required by Ameline.
[10] We disagree. The district court did both obtain and
recognize the views of counsel regarding the medical issues.
Ameline does not require district courts on remand to appoint
or consider the evaluation of medical experts when requested
by counsel; it simply states that the “views of counsel, at least
in writing, should be obtained.” 409 F.3d at 1085 (quotation
marks omitted). Further, Thornton requested an independent
medical examiner only in the event that the district court
decide to re-sentence him, not to assist the district court in
making the threshold determination to re-sentence.
[11] Nor is any other matter relating to Thornton’s health
properly before us in the present appeal. Thornton did argue
at the original sentencing that his physical health was a factor
warranting leniency, but did not raise the issue on the first
appeal, either in his original brief or in his supplemental brief
filed after Booker. As noted, an appeal from an Ameline
remand which does not result in resentencing is limited to the
question whether the district judge properly understood the
full scope of his post-Booker discretion. Combs, 470 F.3d at
1296-97. As a consequence, although issues raised but not
decided on appeal prior to an Ameline remand are preserved,
claims that are unrelated to the Ameline remand and that were
362 UNITED STATES v. THORNTON
available but not raised on the first appeal cannot be raised for
the first time on the second appeal.5
IV.
For the foregoing reasons, we AFFIRM.
5
Although the district court’s failure to respond to Thornton’s allegation
that the BOP is unable to treat a serious medical condition is troubling, we
note that a current BOP policy statement, of which we take judicial notice,
indicates the BOP is able to approve and pay for organ transplants at
approved transplant centers. Bureau of Prisons, Program Statement
P6031.01: Patient Care, at 47 (2005). Moreover, an inmate whose serious
medical needs are not being met can sue prison officials for Eighth
Amendment violations. See Estelle v. Gamble, 429 U.S. 97, 104-05
(1976); see also Carlson v. Green, 446 U.S. 14 (1980).