United States v. Daniel Smith

891 F.2d 296 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Daniel SMITH, Defendant-Appellant. No. 88-3317. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 2, 1989. Decided Dec. 6, 1989. Before BROWNING, SCHROEDER, and FLETCHER, Circuit Judges. 1 MEMORANDUM * 2 Daniel Smith appeals his sentence, after pleading guilty to engaging in sexual contact with a person who had not attained the age of twelve in violation of 18 U.S.C. § 1153 . 3 The only issue is whether appellant should have been sentenced under 18 U.S.C. § 2242 (2), which provides for a maximum penalty of three years, as opposed to being sentenced under 18 U.S.C. § 2241 (c), which provides for a maximum penalty of five years. Both statutes were applicable to the defendant's conduct, and the prosecutor chose to prosecute under the more serious one. The prosecutor clearly had discretion to do so. Under our system of separation…