United States v. Rollness

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30411
Plaintiff-Appellee, D.C. No.
v.  CR-06-00041-002-
RODNEY LEE ROLLNESS, RSL
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
February 2, 2009—Seattle, Washington
Filed April 2, 2009
Before: Betty B. Fletcher, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Rymer
3981
3982 UNITED STATES v. ROLLNESS
COUNSEL
Suzanne Lee Elliott, Seattle, Washington, for the defendant-
appellant.
Jeffrey C. Sullivan, United States Attorney; Helen J. Brunner
(argued), Assistant United States Attorney; Tessa Gorman,
Assistant United States Attorney; Michael Lang, Assistant
UNITED STATES v. ROLLNESS 3983
United States Attorney; Bruce Miyake, Assistant United
States Attorney, Western District of Washington, for the
plaintiff-appellee.
OPINION
PER CURIAM:
Pursuant to a jury trial, Rodney Lee Rollness, a former
member of the Washington Nomads chapter of the Hells
Angels, was convicted under the Violent Crime in Aid of
Racketeering (VICAR) statute, 18 U.S.C. § 1959, for the mur-
der of Michael Walsh. The district court sentenced Rollness
to life imprisonment, which it determined to be the minimum
sentence required under 18 U.S.C. § 1959(a)(1) for murder in
aid of racketeering (“VICAR murder”). On appeal, Rollness
contends that the district court was free under § 1959(a)(1) to
impose a minimum sentence of a fine, without any term of
imprisonment, for VICAR murder.1 We disagree, and hold
that VICAR murder carries a statutory minimum sentence of
life imprisonment.
DISCUSSION
[1] The VICAR statute provides, in relevant part, that who-
ever commits murder “for the purpose of . . . maintaining or
increasing position in an enterprise engaged in racketeering
activity . . . shall be punished . . . by death or life imprison-
ment, or a fine under this title, or both.” 18 U.S.C.
§ 1959(a)(1); see United States v. Banks, 514 F.3d 959, 964
1
Rollness was found guilty of multiple offenses in addition to VICAR
murder, including participation in a Racketeer Influenced and Corrupt
Organization (“RICO”), in violation of 18 U.S.C. § 1962(c) and RICO
conspiracy, in violation of 18 U.S.C. § 1962(d). He raises several other
arguments challenging his conviction and sentence for these offenses,
which we address in a concurrently filed memorandum disposition.
3984 UNITED STATES v. ROLLNESS
(9th Cir. 2008) (describing “the elements required for a con-
viction” under the VICAR statute, but not discussing sentenc-
ing). Rollness contends that under the plain language of this
statute, a district court is free to punish VICAR murder with
a sentence of (1) death and a fine, (2) life imprisonment and
a fine, or (3) a fine only. This interpretation of the statute has
been rejected by two of our sister circuits. See United States
v. James, 239 F.3d 120, 126-27 (2d Cir. 2000); United States
v. Carson, 455 F.3d 336, 385 n.44 (D.C. Cir. 2006) (adopting
James’ holding without further analysis).
[2] “The notion that the [VICAR] statute contemplates the
imposition of a fine without imprisonment,” as the Second
Circuit observed in James, “cannot be reconciled with the
extremely harsh punishments — death or life imprisonment
— otherwise available” for VICAR murder. Id. at 126; see
also United States v. Pabon-Cruz, 391 F.3d 86, 104 (2d Cir.
2004) (“James presents a situation where the plain language
of the statute is indeed nonsensical enough to indicate that
that plain meaning could not have been what Congress
intended. To allow no option between capital punishment or
life imprisonment, on the one hand, and a fine, on the other,
is incomprehensible.”). Although Rollness’ interpretation of
the VICAR statute is syntactically possible, “[w]e see no basis
for concluding that Congress intended the unlikely result that
. . . a judge [is] free to reject a death sentence or life imprison-
ment for a defendant convicted under 18 U.S.C. § 1959(a)(1),
but only by sentencing that defendant to a fine without prison
time.” James, 259 F.3d at 127; see also United States v. Alfe-
che, 942 F.2d 697, 698 (9th Cir. 1991) (per curiam) (rejecting
defendant’s construction of statute where the court “[found]
nothing in the language or history of [the statute] to suggest
that Congress intended the absurd results possible under this
construction”); Pub. Citizen v. U.S. Dept. of Justice, 491 U.S.
440, 470 (1989) (Kennedy, J., concurring) (describing the
absurd results canon as a “narrow exception to our normal
rule of statutory construction” that “demonstrates a respect for
UNITED STATES v. ROLLNESS 3985
the coequal Legislative Branch, which we assume would not
act in an absurd way”).
[3] Rollness contends that the “rule of lenity” should lead
us to reject the Second Circuit’s interpretation of the VICAR
statute. Given the absurd results that would flow from the
interpretation of § 1959(a)(1) that Rollness urges, however,
“[w]e find no ambiguity requiring lenity.” United States v.
Alfeche, 942 F.2d 697, 699 (9th Cir. 2001); see id. (“Because
the meaning of language is inherently contextual, we have
declined to deem a statute ambiguous for purposes of lenity
merely because it was possible to articulate a construction
more narrow than that urged by the government.”) (quoting
Moskal v. United States, 498 U.S. 103, 108 (1990)). Accord-
ingly, we join the Second and D.C. Circuits in holding that
§ 1959(a)(1) imposes a minimum sentence of life imprison-
ment for VICAR murder.
AFFIRMED.
RYMER, Circuit Judge, concurring:
Alternately, we can affirm because the district court found
that even if it could impose just a fine, a fine would not be
appropriate in this case. The sentence imposed was certainly
reasonable. See United States v. Carty, 520 F.3d 984 (9th Cir.
2008).