The Ninth Circuit decides to affirm the (improper) sentence "without prejudice to a later request by him" to be resentenced. I am all for equity, and this seems about right.
But the proceduralist in me worries that there is no such thing as a "request" in federal court. Especially in criminal cases. There are habeas petitions. There are motions to vacate. There are various other procedures as well. Each with their own preconditions. I'm not sure where the Ninth Circuit's proposed "request" fits into this structure. Or how it satisfies the underlying procedural requirements.
It should. There should be some way to accomplish what the Ninth Circuit wants. But I am by now quite familiar with the fact that federal criminal law often refuses to find a way to do what's right, and repeatedly places procedural roadblocks in the way that prevent such relief. Especially when, as here, an appellate court has "affirmed" a sentence and it is thus final.
So I wonder precisely what procedure Judge O'Scannlain is thinking about here. Other than saying simply "you can do it because we say you can." Something that is clearly not good enough in other contexts.