United States v. Branden Pete

FILED
NOT FOR PUBLICATION
OCT 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10215
Plaintiff-Appellee, D.C. No. 3:03-CR-00355-SMM-04
v.
MEMORANDUM*
BRANDEN PETE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted October 16, 2018**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
Before: HAWKINS and HURWITZ, Circuit Judges, and ROSENTHAL,*** District
Judge.
This is the second appeal following Branden Pete’s convictions for second-
degree murder, felony murder, and conspiracy to murder. Pete was 16 when he
and three others raped and killed Charlotte Brown. In the first appeal, this court
vacated Pete’s sentence of 708 months’ imprisonment and remanded for
resentencing. On remand, the district court sentenced him to a 648-month prison
term.1 We affirm.
1. Pete argues that Miller v. Alabama, 567 U.S. 460 (2012), invalidated
U.S.S.G. § 2A1.1 and base offense level 43 for juvenile offenders, and that his
Guidelines sentence calculation was erroneous. The argument is foreclosed by
United States v. Briones, which held that Miller did not overrule the Supreme
Court’s instruction that “a district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.” See 890 F.3d 811, 816–17
(9th Cir. 2018) (quoting Gall v. United States, 552 U.S. 38, 49 (2007)). Pete’s
claim also fails because it incorrectly assumes that using base offense level 43
***
The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
1
See United States v. Pete, 819 F.3d 1121 (9th Cir. 2016); United States v.
Pete, 525 F.3d 844 (9th Cir. 2008); United States v. Pete, 277 F. App’x 730 (9th
Cir. 2008); United States v. Brandon P., 387 F.3d 969 (9th Cir. 2004).
2
requires a life sentence. The Guidelines are advisory, United States v. Booker, 543
U.S. 220, 245 (2005), and the district court sentenced Pete to a term of years, not
life.2
2. Pete also contends that base offense level 43 is unlawful because it does
not give a “range,” as 28 U.S.C. § 994(b)(1) requires. Pete recycles this argument
from his 2014 appeal. See Pete, 819 F.3d at 1134–35. The prior panel rejected this
argument because offense level 43 is consistent with the federal murder statute, 18
U.S.C. § 1111. Id. The argument is both wrong and foreclosed by the law of the
case. Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).
3. Pete further argues that the district court erred in applying U.S.S.G.
§ 2A1.1 instead of § 2A1.2 because the jury acquitted him of premeditated first-
degree murder and convicted him of second-degree murder. But the jury convicted
Pete of felony murder arising from kidnaping or sexual abuse, which is governed
by § 2A1.1. U.S.S.G. §§ 2A3.1, 2A4.1 (cross-referencing § 2A1.1); see § 2A1.1
cmt. 2(B). The district court did not err in applying § 2A1.1.
4. Nor did the district court commit prejudicial error in applying the
enhancement for obstructing justice. U.S.S.G. § 3C1.1. Without the two-point
2
Miller is not implicated here. In Miller, the defendants were juveniles
sentenced to life without parole. Miller, 567 U.S. at 465. Pete did not receive a
life sentence without parole.
3
enhancement, Pete’s adjusted offense level would have been 45 instead of 47. It
would still have defaulted to 43, the level from which the district court began the
calculation of his sentence. If there was error, it was harmless.
AFFIRMED.
4