United States v. Patrick Jones

MEMORANDUM *

Appellant Patrick Jones appeals the district court’s imposition of a 15-year man *770 datory-minimum sentence for violation of 18 U.S.C. § 2251 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

In United States v. Avila-Anguiano, 609 F.3d 1046 (9th Cir.2010), we stated:

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 Fed.Appx. 616, 617 (9th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 1937 , 182 L.Ed.2d 795 (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…

concurring:

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 defen *771 dant 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 Avilar-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…

concurring in part and dissenting in part:

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 Fed.Appx. 616, 617 (9th Cir. 2011) cert. denied, — U.S. —, 132 S.Ct. 1937 , 182 L.Ed.2d 795 (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 Fed.Appx. at 617 .

*772 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.…

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-

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…