UNITED STATES of America, Plaintiff-Appellee, v. Blaine Travis FIFIELD, Defendant-Appellant, 485 F.3d 1053

Opinion by Judge TASHIMA; Concurrence by Judge O’SCANNLAIN; Concurrence by Judge TASHIMA TASHIMA, Circuit Judge: On his first appeal, Blaine Travis Fifield was granted a limited remand pursuant to United States v. Ameline, 409 F.3d 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 jurisdiction 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, Fi-field 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 controlled 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’ imprisonment. 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), declaring the United States Sentencing Guidelines advisory rather than mandatory. Id. at 259-65, 125 S.Ct. 738. 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 district court, without requesting or receiving any input from 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 different 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 followed. ANALYSIS 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 Ame-line 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 advisory. Id. at 1068.

Shortly after receiving our mandate, the district 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. 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 opinions, 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 written submissions is ... necessary for the district court to meaningfully comply with Ame-line’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 sentencing 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 Ameline 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. Here, as in Montgomery, the district court made its decision without soliciting the views of the parties. Under Montgomery, this was error. We therefore again remand the sentence to the district court for compliance with the procedures set forth in Ameline. Sentence REMANDED.