NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 18-30246 Plaintiff-Appellee, D.C. No. 9:07-cr-00018-DWM-1 v.

PATRICK LEGAN,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, Senior District Judge, Presiding

Argued and Submitted March 4, 2020 Portland, Oregon

Before: FERNANDEZ, PAEZ, Circuit Judges, and BURGESS,** Chief District

Judge.

Patrick Legan appeals his revocation sentence, in which the district court

revoked one of Legan’s two lifetime terms of supervised release and left the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy M. Burgess, Chief United States District Judge for the District of Alaska, sitting by designation.

1 second term dormant. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. We vacate and remand to the district court for resentencing.

In general, we review revocation sentences for abuse of discretion. United

States v. Duff, 831 F.2d 176, 177 (9th Cir. 1987). However, we review de novo the

question at issue here, whether the district court properly interpreted the applicable

statute and correctly resolved Legan’s constitutional claim. Id.

It is undisputed that Legan’s underlying convictions for receipt and

possession of child pornography violate the Fifth Amendment’s Double Jeopardy

Clause. See United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008).

However, Legan did not appeal or collaterally attack his judgment or sentence

within the statutes of limitations. He cannot now attack the underlying convictions

through a revocation proceeding or an appeal of his revocation proceeding. United

States v. Castro-Verdugo, 750 F.3d 1065, 1071 (9th Cir. 2014). Therefore, there is

no procedural mechanism to reach back and correct Legan’s underlying

convictions at this time.

Nonetheless, Legan’s concurrent lifetime terms of supervised release as re-

imposed on revocation perpetuate the underlying Double Jeopardy violation

because revocation penalties are considered part of the penalty for the initial

offense. See Johnson v. United States, 529 U.S. 694, 699 (2000); United States v.

2 Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995). Even though the district court did

not have jurisdiction to vacate either of the underlying convictions, it should have

mitigated the ongoing Double Jeopardy violation at the time of revocation. Despite

Legan’s violative conduct, the interests of justice warrant terminating one term of

supervision. Accordingly, we VACATE the revocation sentence and REMAND

with instructions for the district court to terminate one of the two lifetime terms of

supervised release under 18 U.S.C. § 3583(e)(1). The district court may then

resentence Legan on the remaining supervised release term.

VACATED and REMANDED for resentencing.

3

FILED

U.S. v. Legan, No. 18-30246

MAY 18 2020

FERNANDEZ, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent because I perceive no authority for using Legan’s

violations of his terms of supervised release as a vehicle for overturning part of his

original sentence.