United States v. Stephen Brines , 478 F. App'x 451 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50240
Plaintiff - Appellant, D.C. No. 2:10-cr-01094-R-1
v.
MEMORANDUM *
STEPHEN JAY BRINES,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted July 13, 2012 **
Pasadena, California
Before: GILMAN ***, TALLMAN, and N.R. SMITH, Circuit Judges.
Stephen Jay Brines pleaded guilty to the charge of knowingly receiving child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Although the mandatory
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, Senior United States Circuit Judge for the Sixth
Circuit, sitting by designation.
minimum penalty for this crime is five years of imprisonment pursuant to 18 U.S.C.
§ 2252A(b)(1), the district court sentenced Brines to just two years of imprisonment,
to be followed by 10 years of supervised release.
The government has appealed the sentence imposed by the district court,
contending that the sentence is unlawful under 18 U.S.C. § 2252A(b)(1). We have
jurisdiction under 28 U.S.C. § 1291, and we vacate Brines’s sentence.
Section 2252A(b)(1) provides, inter alia, that a person who violates
§ 2252A(a)(2)(A) “shall be . . . imprisoned not less than 5 years . . . .” This minimum
sentence “is mandatory, not optional.” See United States v. Sykes, 658 F.3d 1140,
1146 (9th Cir. 2011) (internal quotation marks omitted). Because no exception to the
statutory minimum sentence applies in this case, the district court had no authority to
sentence Brines to less than five years of imprisonment.
Brines also argues that, if this court remands, the district court should be
required to impose a sentence not greater than the minimum five-year prison term.
However, we have held that “as a general matter, 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. Matthews, 278 F.3d
880, 885 (9th Cir. 2002) (en banc). We therefore VACATE Brines’s sentence and
2
REMAND the case for a full resentencing without the constraints from any prior
sentencing, consistent with this Memorandum.
VACATED and REMANDED.
3