United States v. William Brand , 446 F. App'x 906 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 11 2011
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. 10-30304
Plaintiff - Appellee, D.C. No. 2:10-cr-00009-DWM
v.
MEMORANDUM *
WILLIAM AUGUST BRAND,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted August 2, 2011 **
Before: RYMER, IKUTA, and N.R. SMITH, Circuit Judges.
William August Brand appeals from the 120-month sentence imposed
following his guilty-plea conviction for possession of child pornography, in
violation of 18 U.S.C. § 2252A (a)(5)(B) and (b)(2). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
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).
Brand contends that his Fifth Amendment rights were violated because the
Government “rel[ied] on the underlying facts of a prior conviction in order to
secure a conviction” and “subsequently ... re[lied] on the prior conviction to justify
a substantial increase in the statutory sentence [.]”
The Fifth Amendment’s Double Jeopardy Clause provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]”
U.S. CONST. amend. V. The clause provides protection from multiple
punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). The
conviction on appeal arose out of Brand’s conduct in 2009, while Brands “prior
conviction” occurred in 2006. Brand fails to demonstrate that he was punished
twice for the same offense. See United States v. Ziskin, 360 F.3d 934, 948 (9th Cir.
2003). The use of the prior conviction at trial and at sentencing does not create a
double jeopardy issue.
AFFIRMED.
2 10-30304