United States v. Patrick Jones , 532 F. App'x 769 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50120
Plaintiff - Appellee, D.C. No. 3:09-cr-01250-W-2
v.
MEMORANDUM*
PATRICK JONES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted June 6, 2013
Pasadena, California
Before: GOULD, N.R. SMITH, and NGUYEN, Circuit Judges.
Appellant Patrick Jones appeals the district court’s imposition of a 15-year
mandatory-minimum sentence for violation of 18 U.S.C. § 2251(a). 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 Ninth Circuit Rule 36-3.
In United States v. Avila-Anguiano, 609 F.3d 1046 (9th Cir. 2010), we
stated:
When a defendant is sentenced to multiple counts and one of them is
later vacated on appeal, the sentencing package becomes ‘unbundled.’
The district court then has the authority to put together a new package
reflecting its considered judgment as to the punishment the defendant
deserve[d] for the crimes of which he [wa]s still convicted.
Id. at 1049 (alteration in original) (internal quotation marks omitted). Thus, the
district court erred in concluding that it lacked jurisdiction to reconsider Jones’s
sentence on remand after we reversed Jones’s trafficking conviction in his prior
appeal, United States v. Jones, 459 F. App’x 616, 617 (9th Cir. 2011), cert. denied,
132 S. Ct. 1937 (2012).
However, we conclude that the error was harmless. The district court could
not have sentenced Jones to less than the 15-year mandatory minimum without a
motion from the government. United States v. Valente, 961 F.2d 133, 134–35 (9th
Cir. 1992). Because the district court could not have lowered Jones’s sentence,
Jones incurred no prejudice when the district court declined to re-sentence him.
See United States v. Gunning, 401 F.3d 1145, 1149 (9th Cir. 2005) (concluding
that failure to re-sentence is prejudicial “when a district court could have lowered a
defendant’s sentence . . . even if we doubted that the district court would have done
so”).
2
Further, the law of the case forecloses Jones’s Fifth Amendment claims. See
United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). In his prior appeal, Jones
challenged his conviction by contending that the government must “prove scienter
as to the minor’s age in order to justify criminal penalties of the magnitude set
forth in section 2251.” In the alternative, Jones argued that even if we upheld his
conviction, we should still vacate his sentence. To support these claims, Jones
relied on the same arguments and authorities that he now brings before us.
However, we previously rejected Jones’s claim that the scienter demanded by the
statute was inadequate to support a conviction for a crime with a 15-year
mandatory minimum sentence. Jones, 459 F. App’x at 617. In doing so, we
decided Jones’s restatement of that argument—that his 15-year sentence offends
the Fifth Amendment—“by necessary implication in the previous disposition.” See
Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). In other words,
we disagree with Jones (and the dissent) that simply repackaging arguments
already raised in a prior appeal should allow Jones a second chance to appeal the
same substantive issues.
Jones’s Eighth Amendment claim is not timely, because he did not raise it in
his first appeal. Therefore, we decline to address it. See United States v. Nagra,
147 F.3d 875, 882 (9th Cir. 1998) (“When a party could have raised an issue in a
3
prior appeal but did not, a court later hearing the same case need not consider the
matter.”).
AFFIRMED.
4
FILED
United States v. Jones, No. 12-50120 JUL 10 2013
MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring: U.S. COURT OF APPEALS
I agree with the majority’s disposition of this case. I write separately to
address the “unbundling” issue. In my view, United States v. Avila-Anguiano, 609
F.3d 1046, 1048–49 (9th Cir. 2010), should not compel us to hold that Jones’s
sentence was “unbundled” when we vacated one count on his first appeal. Avila-
Anguiano, broadly states that “[w]hen a defendant is sentenced to multiple counts
and one of them is later vacated on appeal, the sentencing package becomes
‘unbundled.’” Id. at 1049 (internal quotation marks omitted). “Such ‘unbundling’
is often warranted because conviction on the reversed counts may have affected the
remaining counts.” Id.The Avila-Anguiano rationale made sense in that case. There, the district
court had sentenced the defendant to 180 months imprisonment. Id. at 1048. The
sentence consisted of a mandatory minimum of 120 months for one count to run
consecutive to a 60 month sentence for five other counts, with those counts
running concurrently with each other. Id. We later vacated three of those five
counts. Id. On the defendant’s second appeal, we concluded that the district court
had jurisdiction to resentence defendant on the surviving counts on remand of the
first appeal, because the sentence became unbundled. Id. at 1049. Given the
potential interplay between the mandatory sentence and the other counts, it is clear
how the vacated counts could have “affected” the original sentencing.
Jones’s original sentence distinguishes this case from Avila-Aguiano. There
is no indication that Jones’s sentences should have been unbundled on remand,
because there is no indication that they were “bundled” in the first place. Jones
received the mandatory minimum for both counts to run concurrently. The district
court could not have imposed less than the mandatory minimum (without a
government motion) and clearly did not wish to impose a greater sentence.
Accordingly, the vacated count could not have “affected” the district court’s
original sentencing on the other count.
Jones cites no authority applying the “unbundling” theory to mandatory
sentences set to run concurrently, and research reveals none. When asked about
the lack of supporting authority at oral argument, Jones claimed that United States
v. Bennett, 363 F.3d 947, 955-56 (9th Cir. 2004), supports his position. However,
Bennett is inapposite. There, “the district court did not differentiate among
Bennett’s [two] counts of conviction during sentencing and ultimately sentenced
Bennett to 121 months imprisonment ‘as to each count, concurrent.’” Id. at 956.
Unlike the instant case, there was no indication that the district court meant to
impose the mandatory minimum (and nothing greater). As such, Jones’s reliance
on Bennett is misplaced. Thus, I would hold that the district court lacked
jurisdiction to resentence Jones on the count surviving his first appeal.
FILED
United States v. Jones, No. 12-50120 JUL 10 2013
MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree with the majority that the district court erred when it concluded that
it had no discretion to reconsider Jones’s sentence on remand. The error is
understandable, because our prior decision was ambiguous and not clear in
mandate, but as a general rule, the district court can act when not precluded by the
mandate.
But I disagree that the error was harmless. In affirming Jones’s 18 U.S.C. §
2251(a) conviction in his prior appeal, we relied on United States v. U.S. District
Court (“Kantor II”). United States v. Jones, 459 F. App’x 616, 617 (9th Cir. 2011)
cert. denied, 132 S. Ct. 1937 (2012) (citing Kantor II, 858 F.2d 534 (9th Cir.
1988)). Kantor II came to us on a writ of mandamus before trial began and a
sentence had been entered, and it did not discuss sentencing issues. 858 F.2d at
534. When we decided Jones’s prior appeal, we did not refer to his sentence or
sentencing claims. Jones, 459 F. App’x at 617.
Application of the law of the case is discretionary. Hall v. City of Los
Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). But here the district court had no
opportunity to apply its discretion. Jones did not present his constitutional claims
to the district court in his first sentencing hearing, and on remand the district court
erroneously concluded it had no jurisdiction to consider them for the first time.
Where a district court has not undertaken “the traditional exercise of discretion by
a sentencing court,” Koon v. United States, 518 U.S. 81, 98 (1996), we should be
reluctant to substitute our judgment as to how that discretion would or should have
been exercised on any matters of sentencing. I see no merit to an expansive law of
the case ruling that forecloses from consideration a non-frivolous issue that neither
the district court nor we have previously addressed.
Jones’s arguments against his conviction and sentence were similar, but
similar arguments carry distinct meanings when posed in different contexts and to
different tribunals. The prior panel knew the sentence would become unbundled
on remand and I think would have expected the district court to hear Jones’s claims
when it resentenced him. With the majority’s decision now, we know the district
court will never consider those claims. Thus I think a legitimate issue goes
unreviewed.
I conclude that our prior decision does not represent the law of the case. I
would remand to the district court to consider Jones’s sentencing argument in the
first instance. I respectfully dissent.