                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 06-30171
                Plaintiff-Appellee,
               v.                                   D.C. No.
                                                 CR 03-0042 DWM
BLAINE TRAVIS FIFIELD,
                                                    OPINION
             Defendant-Appellant.
                                            
         Appeal from the United States District Court
                 for the District of Montana
         Donald W. Molloy, District Judge, Presiding

                    Submitted March 8, 2007*
                       Seattle, Washington

                         Filed May 7, 2007

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
            Marsha S. Berzon, Circuit Judges.

                 Opinion by Judge Tashima;
              Concurrence by Judge O’Scannlain;
               Concurrence by Judge Tashima




  *The panel unanimously finds this case appropriate for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

                                 5169
                    UNITED STATES v. FIFIELD               5171


                         COUNSEL

John Rhodes, Assistant Federal Defender, Missoula, Montana,
for the defendant-appellant.

Eric B. Wolff, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.


                          OPINION

TASHIMA, Circuit Judge:

   On his first appeal, Blaine Travis Fifield was granted a lim-
ited remand pursuant to United States v. Ameline, 409 F.3d
5172                UNITED STATES v. FIFIELD
1073 (9th Cir. 2005) (en banc). On remand, the district court
declined to revisit Fifield’s sentence. Fifield again appeals,
arguing that the district court erred by failing to request his
views regarding an appropriate sentence under the advisory
guidelines regime before making its decision. We have juris-
diction over the appeal pursuant to 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, and we again remand.

    FACTUAL AND PROCEDURAL BACKGROUND

   Fifield was convicted in Montana state court in early 2003
for the felony of assault with a dangerous weapon. Thereafter,
Fifield was charged in federal court with one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1), and one count of being an unlawful user of a con-
trolled substance in possession of a firearm, in violation of 18
U.S.C. § 922(g)(3) and 21 U.S.C. § 802. Fifield pleaded
guilty, and the district court calculated the then-mandatory
Sentencing Guidelines’ range at 46 to 57 months’ imprison-
ment.

   On July 6, 2004, the district court sentenced Fifield to 54
months’ imprisonment. Subsequent to Fifield’s sentencing,
the Supreme Court decided United States v. Booker, 543 U.S.
220 (2005), declaring the United States Sentencing Guidelines
advisory rather than mandatory. Id. at 259-65.

  Fifield appealed, arguing that it was error for the district
court to have sentenced him under the pre-Booker mandatory
guideline scheme. We rejected most of Fifield’s arguments
against the propriety of his sentence, but did grant a limited
Ameline remand and, on such remand, ordered the district
court “ ‘to answer the question whether the sentence would
have been different had the court known that the Guidelines
were advisory.’ ” United States v. Fifield, 432 F.3d 1056,
1067 (9th Cir. 2005) (quoting Ameline, 409 F.3d at 1084).

   Shortly after it received the mandate of this court, the dis-
trict court, without requesting or receiving any input from
                    UNITED STATES v. FIFIELD               5173
counsel for the government or Fifield, issued an order denying
resentencing. It stated that it had reviewed the record and
decided that its sentence “would not have been materially dif-
ferent had I known the United States Sentencing Guidelines
were advisory.” The court concluded, “the Defendant will not
be resentenced and the sentence previously imposed on July
6, 2004 remains in full force and effect.” This appeal fol-
lowed.

                         ANALYSIS

   [1] Ameline states that “the ‘views of counsel, at least in
writing,’ should be obtained.” Ameline, 409 F.3d at 1085
(quoting United States v. Crosby, 397 F.3d 103, 120 (2d Cir.
2005)). We have previously held that the failure to seek the
views of counsel before making the decision of whether or not
to resentence violates Ameline and constitutes reversible error.

   In United States v. Montgomery, 462 F.3d 1067 (9th Cir.
2006), the defendant’s case had been remanded to the district
court with instructions to determine, pursuant to Ameline,
whether the district court would have sentenced the defendant
differently had it known the sentencing guidelines were advi-
sory. Id. at 1068. Shortly after receiving our mandate, the dis-
trict court issued a short order declining to alter the
defendant’s sentence without inviting or receiving any input
from counsel. Id. The defendant appealed for the second time.

   [2] We held that the district court had committed reversible
error by failing to comply with the original mandate to follow
Ameline. Id. at 1069 (holding that “a district court must
obtain, or at least solicit, the views of counsel in writing
before deciding whether re-sentencing is appropriate”).
Examining the text of Ameline’s majority and dissenting opin-
ions, as well as the Second Circuit case upon which Ameline
was largely based, the court concluded that Ameline’s use of
the word “should” indicated a requirement. Id. at 1069-70.
The court reasoned further that “allowing the parties to file
5174                UNITED STATES v. FIFIELD
written submissions is . . . necessary for the district court to
meaningfully comply with Ameline’s remand procedure.” Id.
at 1070. Such written submissions can bring to the sentencing
court’s attention factors which previously may have been
thought to be unimportant under a mandatory guidelines sen-
tencing regime, but that may provide a basis for resentencing.
Id. at 1071. Obtaining input from counsel also facilitates
appellate review of the sentence for reasonableness by
encouraging the district court to frame its analysis in terms of
the factors under 18 U.S.C. § 3553(a). Id. Finally, we declined
to hold that the failure to obtain counsel’s views on an Ame-
line remand could be addressed by harmless error review. Id.
at 1072 n.3. We thus remanded the case a second time for
compliance with Ameline. Id. at 1071-72.

   [3] Here, as in Montgomery, the district court made its deci-
sion without soliciting the views of the parties. Under Mont-
gomery, this was error. We therefore again remand the
sentence to the district court for compliance with the proce-
dures set forth in Ameline.

  Sentence REMANDED.



O’SCANNLAIN, Circuit Judge, concurring specially:

   I agree with the court that United States v. Montgomery,
462 F.3d 1067 (9th Cir. 2006), requires a remand because the
sentencing judge did not consider the views of counsel before
affirming Fifield’s sentence on limited remand pursuant to
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc). However, I write separately to express my concern that
Montgomery transforms the role of the judge in a way that the
decision in Ameline does not require.

  The crux of the problem is Ameline’s reference to the
remand procedure established by the Second Circuit in United
                       UNITED STATES v. FIFIELD                     5175
States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005). The
Crosby decision states that a sentencing judge assessing the
reasonableness of a pre-Booker sentence “should obtain the
views of counsel, at least in writing,” prior to determining
whether she would have chosen the same sentence under
advisory guidelines. 397 F.3d at 120. This court’s Ameline
decision cites Crosby and agrees “that the ‘views of counsel,
at least in writing,’ should be obtained.” 397 F.3d at 120.

   Like the Montgomery panel, I have no doubt that Ameline
supports the right of counsel to have its written views consid-
ered on this type of limited remand. However, I disagree with
the holding in Montgomery that Ameline places the burden on
sentencing judges to notify counsel on pain of reversible
error. Montgomery states: “Many district courts in this circuit
have read the quoted statement as a requirement. . . . We now
explicitly restate what Ameline requires: that, on Ameline
remand, a district court must obtain, or at least solicit, the
views of counsel in writing before deciding whether re-
sentencing is appropriate.” Montgomery, 462 F.3d at 1069
(emphasis added). I believe that this interpretation of Ameline
mistakes ipse dixit for constitutional law and misapprehends
the proper role of the judge.

   In our adversarial legal system, Article III judges tradition-
ally function as passive and neutral decisionmakers. Unlike
the judges of the continental legal systems of Europe, who
serve in both investigative and adjudicatory capacities, Amer-
ican judges are informed by the parties through an adversarial
method. See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE
AMERICAN WAY OF LAW 9 (2003) (describing the American
adversarial approach as one in which “the assertion of claims,
the search for controlling legal arguments, and the gathering
and submission of evidence are dominated not by judges or
government officials but by disputing parties or interests, act-
ing primarily through lawyers”). Thus, American judges play
a limited role;1 the burden rests on the parties (both private
  1
   Our law distinguishes the role of judges who decide cases from the role
of magistrates and non-Article III judges who actively investigate cases.
5176                    UNITED STATES v. FIFIELD
and governmental) to ensure that offenses are prosecuted and
relevant issues come to light. Our system is willing to leave
some wrongs unpunished to preserve the functional divide:
the doctrines of waiver and procedural default represent this
willingness.

   Montgomery requires judges to overlook their limited role
in a centuries-old American tradition of adversarial litigation.
While Montgomery stops short of instating a rule that the
court must successfully obtain the views of counsel—an
impossible requirement—the decision shifts the burden of
going forward to the judge.2 I cannot accept that our Ameline
decision requires judges in this way to depart from traditional
adversarial procedure. I read Ameline simply to require that a
sentencing judge consider the written views of counsel if such
views are filed by the parties.3 Due process requires no more.

See Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
83 (1982) (“Critical to the Court’s decision [in United States v. Raddatz,
447 U.S. 667 (1980)] to uphold the Magistrates Act was the fact that the
ultimate decision was made by the district court.”). In Morrison v. Olson,
487 U.S. 654 (1988), the Court described the circumscribed role of judges
in an adversarial system, although the Court remarked: “By way of com-
parison, we also note that federal courts and judges have long performed
a variety of functions that . . . do not necessarily or directly involve adver-
sarial proceedings within a trial or appellate court. For example, federal
courts have traditionally supervised grand juries and assisted in their
‘investigative function’ by, if necessary, compelling the testimony of wit-
nesses.” Id. at 681 n.20. Montgomery requires something different and
incongruous in our adversarial system: courts must prod the parties them-
selves.
   2
     Montgomery asserts in a conclusory footnote that failure to follow this
procedure cannot be resolved by harmless error review. 462 F.3d at 1072
n.3.
   3
     Motions or objections often are the proper vehicles to catalyze judicial
action. In a trial, parties may object to the admission of evidence or may
move for a mistrial. If parties do not protest, even constitutional injustices
may go uncorrected. Judges are not required to solicit the views of counsel
in order to avoid such mistakes, though they must consider objections or
motions if raised.
                   UNITED STATES v. FIFIELD              5177
I concur in the current remand but object to the active burden
that Montgomery places on the judge.

   Hopefully there will be an opportunity for an en banc court
to reconsider the wisdom of this practice.



TASHIMA, Circuit Judge, with whom BERZON, Circuit
Judge, joins, concurring:

   I file this separate concurrence only to express my dis-
agreement with Judge O’Scannlain’s criticism of United
States v. Montgomery, 462 F.3d 1067 (9th Cir. 2006).
Because the “Ameline remand” is entirely judge-fashioned,
there are no preexisting rules which govern the procedures to
be followed on such a remand. Montgomery’s interpretation
of Ameline’s requirement imposes no more than that notice
and an opportunity to be heard be given — due process-like
requirements — which we have imposed in a wide variety of
contexts. See, e.g., Weissman v. Quail Lodge, Inc., 179 F.3d
1194, 1198 (9th Cir. 1999) (holding that due process requires
that an attorney be given notice and an opportunity to be
heard before sanctions can be imposed against him). Given
the consequences at stake, I do not believe that requiring
“sentencing judges to notify counsel” places an undue “bur-
den” upon them or, in any manner, “misapprehends the proper
role of the judge.”
