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NOT FOR PUBLICATION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.

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