                   FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                    No. 14-30223
            Plaintiff-Appellee,
                                             D.C. No.
                 v.                    1:13-cr-00281-EJL-1

LAJAI JAMAR PRIDGETTE,
         Defendant-Appellant.                 OPINION


        Appeal from the United States District Court
                  for the District of Idaho
      Edward J. Lodge, Senior District Judge, Presiding

                  Argued February 2, 2016
                  Submitted August 5, 2016
                    Seattle, Washington*

                      Filed August 5, 2016

      Before: Alex Kozinski, Diarmuid F. O’Scannlain
           and Ronald M. Gould, Circuit Judges.

                  Opinion by Judge Kozinski;
          Partial Concurrence and Partial Dissent by
                      Judge O’Scannlain



*
    We order this case SUBMITTED.
2                 UNITED STATES V. PRIDGETTE

                           SUMMARY**


                           Criminal Law

    The panel vacated the district court’s sentencing order
and restitution order and remanded for resentencing on the
existing record after the government conceded error.

    As to the sentence, the government conceded that the
record before the district court did not establish that the
defendant served sufficient time in custody to support the
assessment of two criminal history points for each of two
prior convictions. The panel declined to follow the usual
course when a district court errs in sentencing, and remand
for resentencing on an open record, because the government
squarely raised its arguments before the district court and
tried but failed to prove facts supporting an increased
sentence; in other words, there was a failure of proof after a
full inquiry into the factual questions at issue.

    Judge O’Scannlain concurred in the court’s vacatur of
the sentence and restitution order and in its remand for
resentencing. He dissented from the court’s decision to
remand on a closed record because the defendant did not
request this remedy. In addition, Judge O’Scannlain was not
convinced that the district court conducted a “full inquiry”
into the duration of the defendant’s prior sentences.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. PRIDGETTE                           3

                             COUNSEL

Dennis Alan Benjamin (argued), Nevin, Benjamin, McKay &
Bartlett LLP, Boise, Idaho, for Defendant-Appellant.

Kevin Thomas Maloney (argued) and Marc Haws, Assistant
United States Attorneys; Wendy J. Olson, United States
Attorney; Office of the United States Attorney, Boise, Idaho;
for Plaintiff-Appellee.


                             OPINION

KOZINSKI, Circuit Judge:

    We consider whether a remand for resentencing a
criminal defendant should be on an open or closed record.

                               FACTS

    In 2013, Lajai Pridgette was driving a Mustang on
Interstate 84 in southern Idaho.1 Occupants of two separate
vehicles reported that someone had shot at them from inside
the Mustang. An Idaho State Trooper tracked down the
Mustang, and Pridgette was arrested. While searching the
Mustang, Troopers recovered a handgun, a spent shell casing,
marijuana and machines used to produce counterfeit credit
cards. It was later determined that the Mustang had been
rented from Hertz but was not returned on the agreed-upon
date.


 1
   To the extent that we refer here to facts contained exclusively in the
PSR, we pro tanto lift the order sealing that document.
4                UNITED STATES V. PRIDGETTE

    Pridgette was charged with transporting a stolen vehicle,
being a felon in possession of a firearm, possessing
counterfeit credit cards and possessing counterfeiting devices.
A jury convicted Pridgette on each count. The district judge
sentenced him to 137 months incarceration and ordered him
to pay $13,709.16 in restitution to Hertz and the credit card
companies.

    Senior United States Probation Officer Brent Flock
prepared a presentence investigation report (PSR) detailing
Pridgette’s criminal history. The PSR indicated that Pridgette
had been convicted of possessing a controlled substance in
2003. Flock determined that Pridgette’s sentence for this
offense had been “4 years probation, 60 days jail.” Flock also
indicated that Pridgette was convicted on a second drug
charge in 2004. The PSR represented that Pridgette was
sentenced to “5 years probation, 365 days jail” for this
offense. The Sentencing Guidelines assign two criminal-
history points “for each prior sentence of imprisonment of at
least sixty days” but less than one year and one month, and
one point for each prior sentence of fewer than 60 days.
U.S.S.G. § 4A1.1(a)–(c).2 Flock assigned two criminal-
history points for the 2003 offense and two further points for
the 2004 offense.

    Pridgette objected to the PSR on the ground that it
misrepresented the amount of time he spent behind bars for
these two prior offenses. As to the 2003 offense, Pridgette
argued that “[n]either the discovery provided by the United


    2
   The phrase “‘sentence of imprisonment’ refers only to the portion [of
a prison sentence] that was not suspended.” U.S.S.G. § 4A1.2(b)(2); see
also United States v. Gonzales, 506 F.3d 940, 943 (9th Cir. 2007) (en
banc).
               UNITED STATES V. PRIDGETTE                    5

States Attorney nor the materials provided by the Probation
Office” showed the duration of his sentence. As to the 2004
offense, Pridgette argued that he had served only 8 days in
prison, not 365 days as indicated in the PSR. Flock
responded to Pridgette’s objections by pointing out that
records from the “Sacramento County Superior Court and
Sacramento County detention facility [demonstrate] that the
defendant was convicted of the offenses and served the
custody dates outlined in the [PSR].” The government filed
its own response, suggesting that the “documents of record
reflect all relevant facts” and that the PSR appropriately
summarized “documents obtained by Probation.”

    Pridgette filed a sentencing memorandum that reiterated
his objections, and objected for a third time at sentencing.
The district judge decided that “the probation officer’s
comments adequately address [Pridgette’s] concerns and
objections” to the PSR, and therefore “adopt[ed] the
presentence investigator’s response to those objections as
[his] own.”

    In reality, the records from the Superior Court plainly did
not confirm the PSR’s custody dates. The minute order of the
2003 conviction indicated that Pridgette served only 6 days
of his 60 day sentence and that the remainder of the sentence
was suspended. Similarly, the minute order of the 2004
conviction indicated that Pridgette served only 8 days of his
365 day sentence. The remainder of that sentence had also
been suspended.

    At argument before us, the government conceded that the
documents from the Sacramento County detention facility are
not in the record. Flock represented in the addendum to the
PSR that he had given the detention facility documents to
6               UNITED STATES V. PRIDGETTE

Pridgette’s lawyer, but Pridgette’s lawyer told us that he had
never seen them. The government offered no reason to doubt
counsel’s representation. Indeed, the government represented
that it had never seen the detention facility documents either.
The government could not say whether the detention facility
documents in fact exist.

    Given the government’s concession, we allowed the
Assistant U.S. Attorney 48 hours to consider whether to
confess error. The government responded by filing a letter
brief “acknowledg[ing] that this Court cannot affirm” and
“request[ing] a remand to allow the district court to consider
a more fully developed record on th[e sentencing] issue.” We
then ordered supplemental briefing as to whether we should
remand for resentencing on the existing record or on an open
record.

                        DISCUSSION

    “[A]s a general matter, if a district court errs in
sentencing, we will remand for resentencing on an open
record.” United States v. Matthews, 278 F.3d 880, 885 (9th
Cir. 2002) (en banc). Matthews recognized two exceptions.
The first applies when “additional evidence would not have
changed the outcome.” Id. at 886. The second applies
“where there was a failure of proof after a full inquiry into the
factual question at issue.” Id. The question here is whether
Pridgette’s case falls within the second of these exceptions.

   We have long recognized that a closed remand is
appropriate when the government tries but fails to prove facts
supporting an increased sentence. United States v. Reyes-
Oseguera is instructive. 106 F.3d 1481 (9th Cir. 1997). The
government there sought a sentencing enhancement on the
               UNITED STATES V. PRIDGETTE                    7

theory that Reyes-Oseguera had recklessly endangered an
officer who was trying to arrest him. Id. at 1482. The district
judge applied the enhancement after crediting testimony from
an agent who reported what another agent had told her about
the arrest. We held that the enhancement could not rest
entirely on hearsay. Id. at 1484. Rather than allowing the
government to prove the enhancement with non-hearsay
evidence, we remanded with instructions that the district
court enter a specific lower sentence. Id. at 1482; see also
United States v. Ponce, 51 F.3d 820, 829 (9th Cir. 1995) (per
curiam) (vacating sentencing enhancement based on hearsay
and remanding for resentencing on the existing record).

    We took a similar approach in United States v. Becerra,
992 F.2d 960 (9th Cir. 1993) (as amended). Becerra
contested the base-offense level for sentencing. The
government argued that Becerra knew he was moving 25
kilos of cocaine. In fact, the record indicated that Becerra
dealt only 2 kilos. Id. at 962. The PSR referenced an
unknown “Latin male” and documented calls between a
conspirator and Becerra’s girlfriend. The district judge
thought this was sufficient to attribute the full 25 kilos to
Becerra and sentenced Becerra at the higher level. Id. at 967.
We noted that the PSR did not identify Becerra as the “Latin
male” and that no concrete evidence linked Becerra to the
calls. Rather than giving the government a second chance to
provide more details about Becerra’s involvement, we
remanded with instructions that the district court sentence
Becerra at the 2-kilo level. Id.

    Our latest foray into this corner of criminal law was
United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir.
2010). We held there that the defendant’s appeal fell within
the second exception to Matthews. “[T]he government
8                 UNITED STATES V. PRIDGETTE

submitted evidence to establish that Espinoza’s convictions
constituted crimes of violence under the modified categorical
approach, but it failed to submit evidence sufficient to meet
its burden.” Id. at 1152. We therefore “decline[d] to give the
government a second bite at the apple.” Id.

    When contrasted with Matthews, the import of these cases
becomes clear. In Matthews, the district court applied the
Armed Career Criminal enhancement in reliance on a PSR
representing that Matthews had at least three qualifying state
convictions. 278 F.3d at 883. But neither the PSR nor the
government’s briefing identified what state statutes had been
violated. We reversed the district court’s order applying the
enhancement because it “failed to analyze the statutes” and
therefore did not make the required determination as to
“whether they satisfied the elements of a ‘generic burglary.’”
Id. at 884. We explained that the second exception to the
default rule did not apply because “there was no offer of
proof regarding the state statutes under which Matthews was
convicted.” Id. at 887. Matthews thus was not a case “in
which the district court considered the relevant factual
question, but erred in its ultimate conclusion.” Id. at 888.
“[T]he district court did not fully consider the relevant factual
issue” because its erroneous legal determination “obviated the
need to do so.”3 Id.; see also United States v. Kuo, 620 F.3d
1158, 1165–66 (9th Cir. 2010) (remanding for resentencing
on an open record because district court’s legal error
prevented parties from introducing relevant evidence).



    3
  Similarly, we have often remanded for resentencing on an open record
due to intervening legal developments. See, e.g., United States v. Grisel,
488 F.3d 844, 852 (9th Cir. 2007) (en banc); United States v. Crawford,
372 F.3d 1048, 1062 (9th Cir. 2004).
                   UNITED STATES V. PRIDGETTE                              9

    A “full inquiry into the factual question at issue” occurs
when the government squarely raises its arguments before the
district court and has a fair opportunity to present evidence in
support of its proposed sentence. If the government fails to
meet its burden of proof even when given such an
opportunity, we may remand for resentencing on the existing
record. See Espinoza-Morales, 621 F.3d at 1152; Reyes-
Oseguera, 106 F.3d at 1484; Ponce, 51 F.3d at 829; Becerra,
992 F.2d at 967. But when the government does not have
occasion to tender a fully developed argument, we remand for
resentencing on an open record. This may occur when a
district court’s erroneous legal ruling prevented the
government from introducing relevant evidence or when
intervening case law has altered the legal landscape in such
a way as to require further fact-finding.4

    Pridgette’s case is not like Matthews, where “there was no
offer of proof” regarding the facts underlying the proposed
sentence. Matthews, 278 F.3d at 885. The government made
an offer of proof and argued that the length of the prior
convictions could be determined by reference to the state-
court minute orders, many of which were placed into the
district court record. The government also relied on the
phantom detention facility documents. Given that Pridgette


  4
    Our dissenting colleague suggests that we should determine whether
there has been a “full inquiry” based on whether the district court offered
an “explanation” for its decision. Partial Dissent at 19. That view cannot
be squared with our precedent. None of the cases discussed above
referred to the thoroughness of the district judge’s explanation as a
relevant factor in determining whether there had been a “full inquiry.”
And this makes sense: Inquiry does not require explanation. If a
particular argument has been fairly presented to the district court, the fact
that the district judge fails to thoroughly discuss that argument does not
deprive the government of an opportunity to participate in a “full inquiry.”
10                UNITED STATES V. PRIDGETTE

specifically objected to the proposed sentence on three
separate occasions, the government was on notice of the
factual deficiencies in its papers.5 It had numerous
opportunities to supplement the record by introducing
documents that would have corroborated its account of
Pridgette’s criminal history. The government chose not to do
so, preferring to rest on evidence that it later conceded was
insufficient to support its position.

    Our conclusion draws support from United States v.
Flores, 725 F.3d 1028 (9th Cir. 2013), where we vacated a
sentencing enhancement for use of a person under the age of
18 in furtherance of a drug conspiracy. We found the record
inconclusive as to whether the co-conspirator was underage
at the relevant time and remanded for resentencing on an
open record. Id. at 1040–43. We concluded that there had
not been “a full inquiry into the factual question at issue”
because the sentencing enhancement was “imposed sua
sponte by the district court at the sentencing hearing.” Id. at
1043. The district judge applied the enhancement “before [it]
heard argument from the government,” and the government
“did not present any evidence in support of the district court’s
finding.” Id.

   In contrast to Flores, the government here had the
opportunity to present its case. The government argued in
favor of an elevated criminal-history category in an extensive


  5
     The government argues that the district court’s sentencing error is
understandable given that Pridgette raised a “multitude” of objections to
the PSR. The fact that Pridgette raised numerous objections does not
excuse the district court from its obligation to evaluate each objection on
its own merits or the government from presenting a full case that meets the
defendant’s objections.
               UNITED STATES V. PRIDGETTE                    11

pre-sentencing memorandum filed with the district court. In
support of its argument, the government attached a blizzard
of state-court records and documents obtained from the
probation office. At sentencing, the government pressed its
view that the criminal-history category had been properly
calculated. By the government’s own admission, the inquiry
into Pridgette’s criminal history was thorough. The district
judge himself indicated that he “ha[d] spent a lot of time
thinking about this case.” “I have looked at the objections
that have been made,” he said. “I understand the arguments.”
Given these comments from the government and the district
judge, there can be no doubt that there was a “full inquiry into
the factual question at issue.”

    We applaud the United States Attorney’s decision to
confess error. The diligence and professionalism of her office
are well known to the judges of our court. But our concern
today is not merely to correct the specific error that occurred
in this case. Rather, we articulate a rule that aligns with our
precedent and will help prevent such errors from occurring
again. We believe this end can best be achieved by
encouraging the government to present a complete record
supporting its desired sentence, taking into account the
possibility that its view of the law may not be sustained.

    Our dissenting colleague claims that we lack authority to
remand for resentencing on the existing record because
Pridgette didn’t explicitly request that remedy. Partial
Dissent at 14. The dissent’s formalist approach is at odds
with both judicial economy and our past practice. We have
often remanded for resentencing on a closed record when
12                 UNITED STATES V. PRIDGETTE

justice so requires, including in cases where the defendant
didn’t expressly request that particular remedy.6

    When a panel is confronted with an important issue that
was not fully addressed in the briefing, our General Orders
advise that the panel should order supplemental briefing on
that issue. 9th Cir. Gen. Order 4.2 (2016). And that’s
precisely what we did in this case. Our supplemental briefing
order supplied both Pridgette and the government with an
opportunity to make arguments regarding the proper scope of
remand. The government argued for remand on an open
record but did not claim that Pridgette had waived the
argument that we should remand for resentencing on the


  6
    Becerra argued in his Ninth Circuit briefs that there was insufficient
evidence to support the district court’s finding that he conspired to deliver
25 kilograms of cocaine. Becerra also argued that the district court didn’t
specify what particular facts it relied upon in reaching its conclusion as to
drug quantity. Neither Becerra nor the government ever discussed
whether any potential remand should be open or closed. Becerra himself
requested a modest remedy: a remand with instructions that the district
court “make explicit findings of fact.” We nonetheless ordered
resentencing on a closed record. 992 F.2d at 967. Similarly, Mauricio
Monroy, one of the defendants in the Ponce case, requested that his
sentence “be vacated and remanded for resentencing.” Even though
Monroy didn’t request a closed remand, we remanded for resentencing on
a closed record at the lower criminal-history category. 51 F.3d at 829.
The defendant in Reyes-Oseguera requested that we vacate his “sentence
and remand[] for resentencing before another judge,” but said nothing
about whether the remand should be open or closed. Yet again, we
ordered a closed remand. 106 F.3d at 1484. And in Espinoza-Morales,
the defendant’s briefs requested that we “remand[] for a new sentencing.”
Six weeks after argument, Espinoza-Morales asked for the first time that
we remand for resentencing on the existing record. We granted that
request over the government’s objection, even though the request was
made after the case had been fully briefed and argued. Espinoza-Morales,
621 F.3d at 1152.
               UNITED STATES V. PRIDGETTE                   13

existing record. “[I]t is well-established that the government
can waive waiver implicitly by failing to assert it.” Tokatly
v. Ashcroft, 371 F.3d 613, 618 (9th Cir. 2004) (internal
quotation marks omitted); see United States v. Doe, 53 F.3d
1081, 1082–83 (9th Cir. 1995). By engaging on the merits
only, the government waived waiver.

                *             *              *

    Because the government has conceded that both the
district court’s restitution order and its sentencing order are
not supported by the record, they are both VACATED. This
case is REMANDED for resentencing on the existing record.



O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:

    I concur in the court’s vacatur of the sentence and
restitution order and in its remand for resentencing. I
respectfully dissent from the court’s decision to limit the
evidence that the district court may consider on remand to
that which is in the existing record.

                               I

                              A

    “The default rule is that ‘if a district court errs in
sentencing, we will remand for resentencing on an open
record—that is, without limitation on the evidence that the
district court may consider.’” United States v. Flores,
725 F.3d 1028, 1043 (9th Cir. 2013) (quoting United States
14              UNITED STATES V. PRIDGETTE

v. Matthews, 278 F.3d 880, 885–86 (9th Cir. 2002) (en
banc)). “We may depart from this general rule where
additional evidence would not have changed the outcome or
where there was a failure of proof after a full inquiry into the
factual question at issue.” Id. (emphasis added) (internal
quotation marks omitted). Because departure from the
default rule is permissive, not mandatory, I would require the
party seeking a closed remand to explain why we should
depart from our default rule.

    Pridgette did not address this issue at all in his opening
brief. “We review only issues that are argued specifically and
distinctly in a party’s opening brief.” Christian Legal Soc’y
v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (alteration omitted)
(quoting Brownfield v. City of Yakima, 612 F.3d 1140, 1149
n.4 (9th Cir. 2010)); see also id. at 487 (“[W]e won’t
‘consider matters on appeal that are not specifically and
distinctly argued in appellant’s opening brief.’” (quoting
Miller v. Fairchild Indust., Inc., 797 F.2d 727, 738 (9th Cir.
1986))).

     “We adhere to this approach for sound prudential
reasons.” Loher v. Thomas, No. 14-16147, — F.3d — (9th
Cir. June 17, 2016) (quoting Ground Zero Ctr. for Non-
Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082, 1091 n.7
(9th Cir. 2004)). “The premise of our adversarial system is
that appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.”
Id. (quoting NASA v. Nelson, 562 U.S. 134, 148 n.10 (2011));
see also Indep. Towers of Wash. v. Washington, 350 F.3d
925, 929 (9th Cir. 2003) (“Our adversarial system relies on
the advocates to inform the discussion and raise the issues to
the court.”); Abovian v. INS, 219 F.3d 972, 981 (9th Cir.
                  UNITED STATES V. PRIDGETTE                           15

2000) (Wallace, J., dissenting) (“There is a risk that the court,
lacking the analysis ordinarily provided by adversarial
parties, will reach the wrong conclusion on the merits and
create poor precedent . . . .”).

    Because Pridgette did not argue anywhere in his opening
brief that we should order a closed remand, he waived this
issue.1 The majority does not appear to dispute this
conclusion. Given Pridgette’s waiver, we should have
declined to address this issue and applied our default rule of
remanding for resentencing on an open record.

                                    B

    After failing to raise this issue in his opening brief,
Pridgette did not mention this issue in his reply brief or at
oral argument.2 Pridgette did not even object when, after
argument, the government confessed error but requested an
open remand. Having failed to argue for a closed remand in
his opening brief, in his reply brief, at oral argument, or in a
response to the government’s letter confessing error,
Pridgette was granted a fifth chance to make his request when

  1
    Christian Legal Society explained that, “[w]ithin the opening brief,
claims must be clearly articulated in (1) ‘a statement of the issues
presented for review’; (2) ‘a summary of the argument’; and (3) ‘the
argument’ section itself.” 626 F.3d at 485 (quoting Fed. R. App. P. 28).
In addition, an appellant’s brief must include a conclusion “stating the
precise relief sought.” Fed. R. App. P. 28(a)(9). Pridgette did not include
a request for a closed remand in any of these four portions of his opening
brief.
 2
   Pridgette certainly should have been aware of this issue by the time of
oral argument because we ordered the parties to be prepared to discuss
Flores, which addresses the scope of the remand at some length. See
Flores, 725 F.3d at 1043.
16                 UNITED STATES V. PRIDGETTE

the panel sua sponte ordered him to address this issue in
supplemental briefing.3 I see no need for such solicitude.

    Furthermore, I do not see why we should forgive
Pridgette’s failure to argue this issue in his opening brief but
punish the government’s failure to develop the record below.4
If we gave Pridgette a fifth chance to argue for a closed
remand, should we not also give the government a second
chance to meet its burden of proof?5


 3
   The majority distorts our General Orders when it asserts that, “[w]hen
a panel is confronted with an important issue that was not fully addressed
in the briefing, our General Orders advise that the panel should order
supplemental briefing on that issue.” Maj. Op. at 12. This turns General
Order 4.2 on its head. In reality, that rule provides: “If a panel determines
to decide a case upon the basis of a significant point not raised by the
parties in their briefs, it shall give serious consideration to requesting
additional briefing and oral argument before issuing a disposition
predicated upon the particular point.” This is not a general license for
judges to disregard the waiver of issues by ordering supplemental briefing.
Rather, General Order 4.2 is a reminder that we should not decide a case
on the basis of a point that the parties have not briefed. So, yes,
supplemental briefing was appropriate in this case, but only as an
alternative to deciding these issues without any briefing from the parties.
We should have followed the parties’ lead and simply declined to address
this issue.
  4
   Judge Kozinski has argued elsewhere that we should not treat parties
disparately when they have both defaulted. See Alvarez v. Tracy, 773 F.3d
1011, 1024 (9th Cir. 2014) (Kozinski, J., dissenting).
  5
    The majority concludes that the government itself waived the waiver
issue by not addressing it in its supplemental brief. We ordered the parties
to address “whether this case should be remanded for resentencing on an
open record or on the existing record” and cited Matthews, so the
government reasonably could have read our order not to permit an
argument that Pridgette waived a request for a closed record. Even if the
government did forfeit such an argument, we used supplemental briefing
                 UNITED STATES V. PRIDGETTE                         17

                                  II

    Even assuming that we should excuse Pridgette’s waiver,
Pridgette’s supplemental brief does not persuasively explain
why we should depart from our default rule of an open
remand.

    Pridgette does not expressly delineate the exceptions to
the default rule and fails to address squarely why any of those
exceptions should apply in this case. Given Pridgette’s
citations, he seems to argue for the exception based on
“failure of proof after a full inquiry into the factual question
at issue.” See Matthews, 278 F.3d at 886. But Pridgette
neither explains what constitutes a “full inquiry,” nor explains
why there was a full inquiry, nor even states that there was a
full inquiry. He merely argues that the government had the
opportunity to meet its burden of proof and does not deserve
a second chance to do so now. Seeing no adequate
explanation in the briefing from Pridgette of why the
exceptions to our default rule should apply in this case, I
would remand for resentencing on an open record.

    Undaunted by the lack of any convincing argument from
Pridgette at any stage, the majority, confident as a “self-
directed board[] of legal inquiry and research,” manufactures
arguments for Pridgette. But see NASA, 562 U.S. at 148 n.10;
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We
will not manufacture arguments for an appellant . . . .”).
Moreover, it reaches out unnecessarily to establish a
prophylactic rule for our circuit because “justice so requires.”
Maj. Op. at 11–12. Rather than adjudicate the dispute that the


to cure Pridgette’s waiver; why not order another round of supplemental
briefing to cure the government’s waiver?
18                UNITED STATES V. PRIDGETTE

parties presented to us, the majority decides that, in this case,
we must craft a rule to “help prevent” future errors by
punishing the government. Maj. Op. at 11. If we are so eager
to set broad rules for the circuit, why did we limit the parties
to 1500-word supplemental briefs, drafted over two weeks,
without the opportunity for responses, and without oral
argument? Instead, we should have left this question to the
next case and to parties who care enough about this issue to
brief it without being ordered to do so.

                                    III

    Reviewing the record, I remain unconvinced by the
majority’s argument that there was a “full inquiry” into the
duration of Pridgette’s prior sentences. After Pridgette
objected to the initial pre-sentence investigation report and
the government responded, Pridgette augmented his
objections in his sentencing memorandum and then
referenced his written objections in passing at the sentencing
hearing. The government did not file any written response to
the sentencing memorandum and did not respond orally to
Pridgette’s passing reference to the issue at the hearing.6

     6
      The majority asserts that Pridgette “objected for a third time at
sentencing.” Maj. Op. at 5. It conveys the impression that Pridgette
actually argued about this point at the sentencing hearing. He did not. His
counsel simply referenced his prior briefing: “I will stand on my previous
briefing about why I think the criminal history level is actually no higher
than five and that the offense level is no higher than 20.” Similarly, a
reader of the majority’s opinion would be forgiven for thinking that the
district judge was discussing the appropriate criminal history category
when he said that he “ha[d] spent a lot of time thinking about this case.”
Maj. Op. at 11. He was not. In context, it is clear that the district judge
was talking about the case generally. Finally, the majority asserts that the
government “pressed its view that the criminal-history category had been
properly calculated” and “admi[tted that] the inquiry into Pridgette’s
                  UNITED STATES V. PRIDGETTE                         19

    At the hearing, the district court did not explore this issue.
It offered no explanation for its decision other than its
conclusion that the probation officer had sufficiently
addressed the objections in his Addendum. I do not think that
this minimal amount of consideration by the court constitutes
a “full inquiry” into the factual question at issue. Indeed, a
“full inquiry” necessarily requires a modicum of “inquiry.”
While perhaps the government is partly responsible for the
lack of a full inquiry, that does not change the fact that there
was no such inquiry.

    The majority’s prophylactic rule does not require any
“inquiry” as part of a “full inquiry” into the factual question
at issue. According to the majority, a full inquiry occurs
when the government has a “fair opportunity” to present
evidence and “squarely raises its arguments before the district
court.” Maj. Op. at 9. In other words, the district court need
not inquire into the factual question at issue so long as the
government has had a chance to address such question.

    While this might be a good rule to encourage the
government “to present a complete record supporting its
desired sentence,” Maj. Op. at 11, I am not convinced that we
must establish prophylactic rules for the Department of
Justice at the expense of a fully informed determination of the
appropriate sentence for defendants. Like the exclusionary
rule in the Fourth Amendment context, the majority’s
prophylactic rule will “generate[] substantial social costs,”
including setting shorter sentences for dangerous convicted
felons on the basis of incomplete evidence. See Hudson v.


criminal history was thorough.” Maj. Op. at 11. It did not. All it said
about the criminal history category was: “I believe that Criminal History
Category VI was also correctly calculated.”
20              UNITED STATES V. PRIDGETTE

Michigan, 547 U.S. 586, 591 (2006) (internal quotation marks
omitted). Given the rule’s “costly toll upon truth-seeking and
law enforcement objectives,” we should be more cautious in
establishing and applying it. See id. (internal quotation marks
omitted); see also id. (“Suppression of evidence . . . has
always been our last resort, not our first impulse.”).

    “The process of criminal sentencing is not a game
between the government and criminal defendants, in which
one side or the other gets penalized for unskillful play. The
goal of sentencing is to determine the most appropriate
sentence in light of the characteristics of the crime and the
defendant.” United States v. Matthews, 240 F.3d 806, 823
(9th Cir. 2000) (O’Scannlain, J., dissenting), on reh’g en
banc, 278 F.3d 880 (9th Cir. 2002). Unfortunately, the
majority loses sight of these principles and seeks to penalize
the government to satisfy its own conception of justice.

     I respectfully dissent.
