United States v. Roy Joey , 845 F.3d 1291 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10096
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-08122-SPL-1
ROY RED JOEY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted October 18, 2016
San Francisco, California
Filed January 19, 2017
Before: Sidney R. Thomas, Chief Judge, and
Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 UNITED STATES V. JOEY
SUMMARY*
Criminal Law
The panel affirmed the district court’s determination that
the defendant, as a repeat and dangerous sex offender against
minors, was subject to an upward offense level adjustment
pursuant to U.S.S.G. § 4B1.5, in a case in which the
defendant was convicted of two counts of abusive sexual
contact under 18 U.S.C. § 2244(a)(5) and two counts of
committing a felony offense involving a minor while required
to register as a sex offender under 18 U.S.C. § 2260A.
The panel rejected the defendant’s argument that U.S.S.G.
§ 2A3.6, or its Application Note 3, bars the application of
§ 4B1.5 in calculating the defendant’s Guidelines range for
his § 2244(a)(5) convictions. The panel wrote that rather than
instructing courts not to apply § 4B1.5 to a conviction under
§ 2244(a)(5) where the defendant also incurs a § 2260A
conviction, the Guidelines instruct courts to determine the
Guidelines range for the § 2244(a)(5) count independently of
§ 2260A.
The panel disposed of the remainder of the defendant’s
challenges to his conviction and sentence in a concurrently-
filed memorandum disposition.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOEY 3
COUNSEL
Cassie Bray Woo (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; John S.
Leonardo, United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.
Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
OPINION
IKUTA, Circuit Judge:
Roy Red Joey was convicted of two counts of abusive
sexual contact under 18 U.S.C. § 2244(a)(5) and two counts
of committing a felony offense involving a minor while
required to register as a sex offender under 18 U.S.C.
§ 2260A. Joey argues that the district court procedurally
erred in calculating the United States Sentencing Guidelines
sentencing range for his § 2244(a)(5) convictions by applying
§ 4B1.5 of the Guidelines when Joey had also been convicted
under § 2260A, which Joey contends punishes the same
conduct as § 4B1.5. Thus, according to Joey, the district
court violated the principle against double counting in
applying the Guidelines. Because we cannot infer that the
Sentencing Commission intended to preclude a § 4B1.5
determination for a § 2244(a)(5) offense when the defendant
has also been convicted under § 2260A, we conclude that the
4 UNITED STATES V. JOEY
district court did not commit a procedural error in calculating
the Guidelines sentencing range, and we affirm.1
I
In 1992, Roy Red Joey was convicted of aggravated
sexual abuse of a child in violation of 18 U.S.C. §§ 1153 and
2241(c) after he forced his nine-year-old niece to the ground,
covered her mouth with his hand, and digitally penetrated her
vagina. As a result of this conviction, Joey was sentenced to
93 months imprisonment, and was required to register as a
sex offender. Several years later, in 2011, Joey offended
again, this time against the minor grandchildren of one of his
friends. At the time, the children were living with their
grandmother, and Joey was a frequent guest at her home,
sometimes even staying overnight.
The indictment in this case alleged that Joey touched one
victim’s breasts on one occasion and touched the other
victim’s penis on three occasions. At trial, the government
elicited testimony from the victims about these incidents.2
The first victim testified that Joey touched her “over and over
and over again” on her thighs, arms, and once on her breasts.
The other victim testified that Joey twice touched his penis as
they watched television in the living room, once through the
victim’s clothes and once under the clothes. On a third
1
We dispose of the remainder of Joey’s challenges to his conviction
and sentence in an unpublished memorandum disposition filed
concurrently with this opinion.
2
The jury appears to have disbelieved the victims’ testimony in some
respects, as evidenced by two not-guilty verdicts and two failures to
render verdicts.
UNITED STATES V. JOEY 5
incident, the victim woke up in his bedroom to find Joey
touching his penis. Eventually the victims’ older sister
learned of these incidents, reported the abuse to law
enforcement, and obtained legal guardianship of the victims
so that they would not be returned to their grandmother’s
house.
The government charged Joey with eight criminal counts.
Counts 1 through 4 covered the four instances of
inappropriate touching and alleged that each incident
constituted a violation of 18 U.S.C. § 2244(a)(5) (prohibiting
knowingly causing another person who is under twelve years
old to engage in a sexual act).3 Counts 5 through 8 alleged
violations of 18 U.S.C. § 2260A, which imposes a penalty on
a defendant who commits a specified felony offense
involving a minor while required by federal or state law to
register as a sex offender.4 After a five-day trial, the jury
returned guilty verdicts as to Counts 1 and 3 (two incidents
3
The indictment alleged that this conduct also violated 18 U.S.C.
§§ 1153 (giving federal courts jurisdiction over certain crimes committed
by Indians) and 2246(3) (defining the term “sexual contact”).
4
18 U.S.C. § 2260A provides:
Whoever, being required by Federal or other law to
register as a sex offender, commits a felony offense
involving a minor under section 1201, 1466A, 1470,
1591, 2241, 2242, 2243, 2244, 2245, 2251, 2251A,
2260, 2421, 2422, 2423, or 2425, shall be sentenced to
a term of imprisonment of 10 years in addition to the
imprisonment imposed for the offense under that
provision. The sentence imposed under this section
shall be consecutive to any sentence imposed for the
offense under that provision.
6 UNITED STATES V. JOEY
involving sexual acts in violation of § 2244(a)(5)) and Counts
5 and 7 (two violations of § 2260A).5
At sentencing, the district court adopted the Guidelines
sentencing calculations from the Pre-Sentence Investigation
Report (PSIR). See 18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.1
(2014).6 The PSIR first calculated the Guidelines sentencing
range for the § 2244(a)(5) convictions. It determined that
the applicable Guidelines provision was § 2A3.4 (abusive
sexual contact), and that the base offense level for the
two convictions under § 2244(a)(5) was 12. U.S.S.G.
§ 2A3.4(a)(3). Turning to the specific offense characteristics
listed in § 2A3.4(b), the PSIR determined that § 2A3.4(b)(1)
required an increase in the offense level to 22 because the
victims of the abusive sexual contact had not yet attained the
age of twelve. Because Joey had been convicted of multiple
counts, the PSIR applied the multiple count adjustment
required in Part D of Chapter 3 of the Guidelines for the two
convictions under § 2244(a)(5), which resulted in a combined
adjusted offense level of 24. See id. § 1B1.1(4).
Finally, the PSIR determined that Joey was a repeat and
dangerous sex offender against minors for purposes of
§ 4B1.5, and therefore subject to an additional upward
offense level adjustment. See id. § 1B1.1(5); id.
§ 4B1.5(a)(1)(B). Section 4B1.5 provides, in relevant part:
5
The jury did not return a verdict on Counts 2 and 6 and acquitted on
Counts 4 and 8.
6
Unless otherwise indicated, all citations to the Guidelines are to the
2014 manual, which applied at the time of Joey’s sentencing. See Johnson
v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996).
UNITED STATES V. JOEY 7
(a) In any case in which the defendant’s
instant offense of conviction is a covered
sex crime, §4B1.1 (Career Offender) does
not apply, and the defendant committed
the instant offense of conviction
subsequent to sustaining at least one sex
offense conviction:
(1) The offense level shall be the greater
of:
(A) the offense level determined
under Chapters Two and
Three; or
(B) the offense level from the
table below decreased by
the number of levels
corresponding to any
applicable adjustment from
§ 3E1.1 (Acceptance of
Responsibility):
Offense Statutory Offense
Maximum Level
(i) Life 37
Pursuant to § 4B1.5, because Joey’s § 2244(a)(5) convictions
were covered sex crimes, § 4B1.1 did not apply to Joey, Joey
had previously been convicted of a sex offense, and the
statutory maximum for the § 2244(a)(5) offenses was life
imprisonment, Joey’s total offense level for the § 2244(a)(5)
convictions was 37. See id. § 4B1.5(a)(1). In addition, the
8 UNITED STATES V. JOEY
PSIR determined that under § 4B1.5(a)(2) Joey’s criminal
history was Category V.7
The PSIR’s calculation of the Guidelines sentencing
range for Joey’s two convictions under 18 U.S.C. § 2260A
was simpler. Section 2A3.6 of the Guidelines provides that
“[i]f the defendant was convicted under . . . 18 U.S.C.
§ 2260A, the guideline sentence is the term of imprisonment
required by statute.” Accordingly, the district court imposed
the term of imprisonment required by § 2260A, “10 years in
addition to the imprisonment imposed for” the underlying
§ 2244(a)(5) offenses.
Before sentencing, Joey submitted written objections to
the PSIR. Among other things, he argued that the PSIR
incorrectly determined that pursuant to § 4B1.5 his offense
level should be 37 and his criminal history a Category V.
Joey claimed that the ten-year sentence under § 2260A (for
committing a new qualifying felony involving a minor while
being required to register as a sex offender), and the increased
offense level for his conviction under § 2244(a)(5) due to the
application of § 4B1.5 (for committing new sex crimes after
having been convicted of a prior sex offense), punished the
same conduct. Put differently, Joey contended that in light of
his § 2260A conviction, applying § 4B1.5 to his § 2244(a)(5)
offenses was impermissible double punishment for the same
acts and therefore constituted a procedural error in calculating
his Guidelines sentencing range. Joey renewed these
objections at the sentencing hearing and also argued that the
7
U.S.S.G. § 4B1.5(a)(2) provides: “The criminal history category
shall be the greater of: (A) the criminal history category determined under
Chapter Four, Part A (Criminal History); or (B) criminal history Category
V.”
UNITED STATES V. JOEY 9
overlap between §§ 4B1.5 and 2260A should at least factor
into the fashioning of an appropriate sentence, which Joey
suggested was 20 years imprisonment.
The district court rejected these arguments, holding that
§ 2260A “serves to punish for [] different conduct” from the
Guidelines. After noting that it considered “all of the
sentencing factors contained under Title 18 Section 3553(a),”
the district court decided that a significant sentence was
warranted in light of Joey’s long history of sexual misconduct
“for the better part of 40 years.” Concluding that “the public
is not safe with [Joey] as a free man,” the district court
adjusted Joey’s offense level up to 39, thereby arriving at a
Guidelines range of 360 months to life imprisonment. The
district court then imposed two life sentences for Counts 1
and 3, to be served concurrently, and 120 months apiece for
Counts 5 and 7, to run concurrent to one another but
consecutive to the life sentences.
II
On appeal, Joey renews his claim that the district court
erred in calculating the advisory Guidelines sentencing range
for his convictions under § 2244(a)(5). According to Joey,
the district court made a procedural error in applying § 4B1.5
for two reasons: (1) § 2A3.6, and in particular Application
Note 3 of that provision, precludes the application of § 4B1.5,
and (2) applying § 4B1.5 in determining Joey’s sentence
under § 2244(a)(5) when he was also being sentenced under
§ 2260A violated the principle against double counting under
the Guidelines. “In determining whether the district court
committed procedural error, we review the district court’s
interpretation of the Sentencing Guidelines de novo and its
factual findings for clear error.” United States v. Smith, 719
10 UNITED STATES V. JOEY
F.3d 1120, 1123 (9th Cir. 2013) (citing United States v.
Swank, 676 F.3d 919, 921 (9th Cir. 2012)).
A
Although the Sentencing Guidelines are merely advisory,
United States v. Booker, 543 U.S. 220, 245 (2005), “a district
court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range” because “the
Guidelines should be the starting point and the initial
benchmark” when imposing a sentence, Gall v. United States,
552 U.S. 38, 49 (2007).
As a general rule, a sentencing court should “consider all
applicable Guidelines provisions in calculating the guidelines
range for an offense.” United States v. Neal, 776 F.3d 645,
660 (9th Cir. 2015) (quoting Smith, 719 F.3d at 1123).
“Absent an instruction to the contrary, enhancements under
Chapter Two, adjustments under Chapter Three, and
determinations under Chapter Four are to be applied
cumulatively.” U.S.S.G. § 1B1.1 cmt. n.4(B). Accordingly,
in calculating the Guidelines sentencing range for an offense,
courts are sometimes required to make multiple
enhancements, adjustments, or determinations that are
“triggered by the same conduct.” Id. As the Guidelines
explain, for example, “shooting a police officer during the
commission of a robbery may warrant an injury enhancement
under §2B3.1(b)(3) and an official victim adjustment under
§3A1.2, even though the enhancement and the adjustment
both are triggered by the shooting of the officer.” Id. From
this guidance, we conclude that a court must generally apply
all applicable Guidelines provisions, regardless whether the
same act triggers multiple provisions.
UNITED STATES V. JOEY 11
Consistent with this general rule, which derives from the
Guidelines themselves, the Sentencing Commission expressly
indicates when Guidelines provisions are not to be applied
cumulatively. See, e.g., Smith, 719 F.3d at 1124 (noting that
the Guidelines manual “spells out numerous instances in
which a particular provision should not be applied to the same
conduct as another provision”). Thus, when a defendant is
subject to a statutory sentencing enhancement for specified
conduct, as Joey is here, the Sentencing Commission provides
explicit instructions when it intends to preclude courts from
adjusting the defendant’s Guidelines sentencing range on
account of the same conduct. For instance, 18 U.S.C.
§ 924(c) imposes an enhanced sentence on a person for using,
carrying, or possessing a firearm in conjunction with the
commission of certain other offenses, and the Sentencing
Commission directs courts not to “apply any specific offense
characteristic for possession, brandishing, use, or discharge
of an explosive or firearm when determining the sentence”
for the offense underlying a conviction of § 924(c). U.S.S.G.
§ 2K2.4 cmt. n.4. The Commission has provided similar
directions for comparable situations in which only one
offense level increase should be applied. See, e.g., id.
§ 2K2.1 cmt. n.8(A) (forbidding a stolen firearm
enhancement where “the base offense level takes into account
that the firearm or ammunition was stolen”); id. § 3A1.1 cmt.
n.2 (forbidding a vulnerable victim adjustment “if the factor
that makes the person a vulnerable victim is incorporated in
the offense guideline”). Accordingly, “we have long held
that the Sentencing Commission understands double
counting”—the idea that the same conduct can sometimes
result in multiple Guidelines offense level enhancements or
adjustments—“and expressly forbids it where it is not
intended.” Smith, 719 F.3d at 1124 (quoting United States v.
12 UNITED STATES V. JOEY
Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010)) (internal
quotation marks omitted).
In light of this understanding of the Sentencing
Commission’s approach to the Guidelines, we have routinely
upheld the cumulative application of Guidelines provisions
over claims of “impermissible double counting” so long as
the application was consistent with the relevant Guidelines
instructions. See, e.g., id. at 1124–25 & n.5. Although we
have “inferred that the Commission would not intend courts
to apply a Guidelines provision that would ‘increase a
defendant’s punishment on account of a kind of harm that has
already been fully accounted for by application of another
part of the Guidelines,’” id. at 1124 (quoting United States v.
Holt, 510 F.3d 1007, 1011 (9th Cir. 2007)), our examination
of the Guidelines has consistently established that if “each
invocation of the behavior serves a unique purpose under the
Guidelines,” then the Commission “authorized and intended”
the cumulative application of both provisions, Holt, 510 F.3d
at 1011 (internal quotations omitted). See, e.g., United States
v. Basa, 817 F.3d 645, 650 (9th Cir. 2016) (affirming the
application of two enhancements that “take account of
separate offense characteristics” and that were not explicitly
non-cumulative); Smith, 719 F.3d at 1124–25 & n.5 (same,
and collecting similar cases). Moreover, we have never held
that a district court erred in applying an otherwise relevant
Guidelines provision merely because the same conduct
triggering the Guidelines provision satisfied an element of the
offense. See United States v. Williams, 14 F.3d 30, 32 (9th
Cir. 1994) (per curiam) (rejecting the argument that
impermissible double counting occurs where a Guidelines
provision considers a factor that is also an element of the
underlying offense because “the proper comparison to
determine whether impermissible double-counting occurred
UNITED STATES V. JOEY 13
is ‘between the applicable guidelines provisions, not between
the guidelines provisions and the criminal code’”) (quoting
United States v. McAninch, 994 F.2d 1380, 1385 (9th Cir.
1993)). Instead, we have reversed district courts for applying
“an enhancement that duplicates a necessary element of the
underlying conviction,” Basa, 817 F.3d at 650, only where
the enhancement has been rendered inapplicable by the
Sentencing Commission’s express directive, see, e.g., United
States v. Aquino, 242 F.3d 859, 864–65 (9th Cir. 2001)
(reversing a district court’s guidelines calculation applying an
enhancement that duplicated an element of a § 924(c)
conviction, in violation of U.S.S.G. § 2K2.4 cmt. n.2 (1998)).
In short, the focus in an impermissible double counting
challenge to a district court’s sentence is on the Sentencing
Commission’s intent, and the primary touchstone for
discovering that intent is the text of the Guidelines manual.8
B
We now consider Joey’s argument that the district court
erred in calculating the Guidelines sentencing range due to
8
As other courts have recognized, “double counting” is an
unfortunate misnomer that can imply an error in process or arithmetic.
See United States v. Fiume, 708 F.3d 59, 61 (1st Cir. 2013). In practice,
however, a double counting error is nothing more than a garden variety
error of textual interpretation—a failure to ascertain correctly the
Sentencing Commission’s directive. See Smith, 719 F.3d at 1124
(observing that the Ninth Circuit’s double counting jurisprudence is an
exercise in inferring the Sentencing Commission’s intent). As with the
interpretation of legal texts generally, our search for the Sentencing
Commission’s intent will most often begin and end “with the text and
structure” of the Guidelines. Cf. Alexander v. Sandoval, 532 U.S. 275,
288 (2001).
14 UNITED STATES V. JOEY
engaging in impermissible double counting. Because a
sentencing court should “consider all applicable Guidelines
provisions in calculating the guidelines range for an offense,”
Neal, 776 F.3d at 660, “[a]bsent an instruction to the
contrary,” U.S.S.G. § 1B1.1 cmt. n.4(B), we first consider
whether the Commission has expressly directed courts not to
apply § 4B1.5 in calculating the Guidelines sentencing range
for an offense under § 2244(a)(5) when the defendant is also
convicted under § 2260A.
Joey argues that § 2A3.6 of the Guidelines constitutes
such a directive, particularly in view of Application Note 3.
See Stinson v. United States, 508 U.S. 36, 38 (1993) (holding
that “commentary in the Guidelines Manual that interprets or
explains a guideline” is generally “authoritative”). Section
2A3.6 provides, in pertinent part, “[i]f the defendant was
convicted under . . . 18 U.S.C. § 2260A, the guideline
sentence is the term of imprisonment required by statute.” It
also provides that “Chapters Three (Adjustments) and Four
(Criminal History and Criminal Livelihood) shall not apply
to any count of conviction covered by this guideline.”
U.S.S.G. § 2A3.6. Application Note 3 to § 2A3.6, in turn,
states:
Inapplicability of Chapter Two
Enhancement.—If a sentence under this
guideline is imposed in conjunction with a
sentence for an underlying offense, do not
apply any specific offense characteristic that
is based on the same conduct as the conduct
comprising the conviction under 18 U.S.C.
§ 2250(c) or § 2260A.
UNITED STATES V. JOEY 15
Section 2A3.6 is applicable here because the PSIR, as
adopted by the district court, calculated Joey’s sentence for
the violations of § 2260A under that guideline, which requires
the imposition of a consecutive ten-year sentence.
Joey argues that the statement in the Application Note
that a court may not apply “any specific offense characteristic
that is based on the same conduct as the conduct comprising
the conviction” under § 2260A barred the district court from
applying § 4B1.5 to his conviction under § 2244(a)(5). We
disagree. For purposes of the Guidelines, “specific offense
characteristics” are included in Chapter 2 of the Guidelines
and are used to determine the defendant’s offense level. See
U.S.S.G. § 1B1.1(a)(2). The base offense level for a
conviction under § 2244(a)(5) is calculated using § 2A3.4.
The specific offense characteristics applicable to § 2244(a)(5)
are set forth in § 2A3.4(b). This subsection (which is, in fact,
labeled “Specific Offense Characteristics”) directs the court
to increase the offense level if a victim was under a specified
age, id. §§ 2A3.4(b)(1)–(2), if the victim was in the custody,
care, or supervisory control of the defendant, id.
§ 2A3.4(b)(3), if the offense involved a knowing
misrepresentation of a participant’s identity in order to induce
sexual contact, id. § 2A3.4(b)(4), or if the victim was enticed
over a computer, id. § 2A3.4(b)(5). By contrast, Chapter 4 is
used to determine the defendant’s criminal history category
and to determine any applicable adjustments for certain
repeat offenders. See id. § 1B1.1(a)(6). By its terms, § 4B1.5
is not labeled a specific offense characteristic, is not included
among the specific offense characteristics for § 2A3.4(b), and
therefore is not the sort of provision described in Application
Note 3 to § 2A3.6.
16 UNITED STATES V. JOEY
The history of § 2A3.6 likewise weighs against Joey’s
argument. The Sentencing Commission added § 2A3.6 to the
Guidelines in 2011 in response to the Adam Walsh Child
Protection and Safety Act of 2006, Pub. L. No. 109-248, 120
Stat. 587. U.S.S.G. app. C amend. 701 at 210. In addition to
adding § 2A3.6 to address the Adam Walsh Act’s creation of
18 U.S.C. § 2260A, id. app. C amend. 701 at 212, the
Sentencing Commission also amended § 4B1.5 to address
other “relevant provisions in the Adam Walsh Act,” id. app.
C amend. 701 at 210. In implementing the Adam Walsh Act,
the Commission included language in § 2A3.6 expressly
instructing courts not to apply Chapter 4 when calculating the
Guidelines sentencing range for § 2260A convictions, but did
not preclude courts from applying § 4B1.5 when calculating
the sentencing range for the offense underlying § 2260A.
Given that the Commission considered what changes to
§ 4B1.5 were necessary to implement the Adam Walsh Act,
the Commission’s decision not to forbid § 4B1.5’s
application to offenses underlying § 2260A convictions,
despite considering both §§ 2A3.6 and 4B1.5 at the same
time, raises the inference that § 4B1.5 and § 2260A should be
applied cumulatively to underlying offenses. Accordingly,
we reject Joey’s argument that § 2A3.6, or its Application
Note 3, bars the application of § 4B1.5 in calculating Joey’s
Guidelines sentencing range for his § 2244(a)(5) convictions.
Indeed, rather than instructing courts not to apply § 4B1.5
to a conviction under § 2244(a)(5) where the defendant also
incurs a § 2260A conviction, the Guidelines are better read as
requiring such application. Section 5G1.2 provides specific
guidance for calculating a sentence where, as here, the
sentence is “to be imposed on a count for which the statute
(1) specifies a term of imprisonment to be imposed; and (2)
requires that such term of imprisonment be imposed to run
UNITED STATES V. JOEY 17
consecutively to any other term of imprisonment.” Id.
§ 5G1.2(a). In such a situation (subject to an exception not
applicable here), the sentence “shall be determined by that
statute and imposed independently” of any other term of
imprisonment associated with another offense. Id.
Application Note 2(A) to § 5G1.2(a) clarifies that (with an
exception not applicable here) “the term of years to be
imposed consecutively is the minimum required by the statute
of conviction and is independent of the guideline sentence on
any other count.” Applied here, § 2260A provides that “[t]he
sentence imposed under this section shall be consecutive to
any sentence imposed” for the underlying offense of
conviction. Therefore, § 5G1.2 requires a district court to
determine the Guidelines sentencing range for the
§ 2244(a)(5) counts independently of the ten-year sentence
for the § 2260A offense.
Nor is there any basis to infer that the Commission did
not intend courts to apply § 4B1.5 because it would “increase
a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of”
§ 2260A. Smith, 719 F.3d at 1124. Section 4B1.5 adjusts a
defendant’s offense level to account for the commission of a
new sex crime after a prior sex crime conviction, whereas
§ 2260A punishes the commission of specified felonies
involving a minor while being required to register as a sex
offender under either federal or state law. Because sex
offender registration requirements vary across jurisdictions,
a defendant who had a prior sex conviction may not
necessarily be subject to such a requirement. See, e.g.,
Alaska Stat. § 12.63.020(a)(2) (registration obligation expires
after 15 years for certain offenders); Ariz. Rev. Stat. § 13-
3821(F) (registration obligation expires at age 25 for juvenile
offenders); Colo. Rev. Stat. § 16-22-113(1) (offenders may
18 UNITED STATES V. JOEY
petition for termination of registration obligations after 20
years, 10 years, 5 years, or at completion of the sentence,
depending on the severity of the offense). As such, §§ 4B1.5
and 2260A serve distinct penological goals, and there is no
reason to infer that the Sentencing Commission did not intend
their dual application in situations like Joey’s, particularly
given the strong textual inferences previously discussed that
support cumulative application.
Because the Guidelines do not contain any instruction that
precludes a district court from applying § 4B1.5 in calculating
the Guidelines sentencing range for a § 2244(a)(5) conviction
where a defendant has also been convicted under § 2260A,
but rather instruct district courts to determine the Guidelines
sentencing range for the § 2244(a)(5) count independently of
§ 2260A, the district court did not procedurally err in
calculating the applicable Guidelines sentencing range.9
AFFIRMED.
9
While our conclusion that the district court did not make any
procedural error in calculating the Guidelines sentencing range does not
foreclose the argument that application of both §§ 4B1.5 and 2260A
produces a recommended sentence that is substantively unreasonable and
overstates a defendant’s culpability, Joey has not specifically and
distinctly raised a substantive unreasonableness claim in his opening brief,
and we therefore do not consider it. See Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999).