United States v. Larry Wayne Lafleur, United States of America v. Nick Michael Holm

971 F.2d 200 UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne LaFLEUR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nick Michael HOLM, Defendant-Appellant. Nos. 89-50599, 89-50644. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1991. Decided Dec. 16, 1991. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 4, 1992. John Lanahan, Asst. Federal Public Defender, San Diego, Cal., for defendant-appellant Larry Wayne LaFleur. Richard Boesen, San Diego, Cal., for defendant-appellant Nick Michael Holm. Larry A. Burns, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: ALARCON, NORRIS and WIGGINS, Circuit Judges. ORDER 1 The opinion filed on December 16, 1991, ( 952 F.2d 1537 (9th Cir.1991)), is hereby amended. The last sentence of the first paragraph at 1547 is deleted and the following language substituted. 2 With this amendment, the panel has voted to deny the petition for rehearing. Judges Alarcon and Wiggins have voted to reject the suggestion for rehearing en banc. Judge Norris has voted to accept the…

ORDER

The opinion filed on December 16, 1991, ( 952 F.2d 1537 (9th Cir.1991)), is hereby amended. The last sentence of the first paragraph at 1547 is deleted and the following language substituted.

With this amendment, the panel has voted to deny the petition for rehearing. Judges Alarcon and Wiggins have voted to reject the suggestion for rehearing en banc. Judge Norris has voted to accept the suggestion for rehearing en banc.

The full court has been advised of the amendment to the opinion and the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

Larry Wayne LaFleur appeals from a jury verdict finding him guilty of first degree murder under 18 U.S.C. § 1111 (a), and from the life sentence he received pursuant to 18 U.S.C. § 1111 (b). LaFleur contends that 1) the district court improperly refused to instruct the jury on voluntary manslaughter, 2) the district court erred in denying his…

concurring in part and dissenting in part:

I concur in Part I of the majority opinion (“Appellant LaFleur”), but dissent from Part II (“Appellants LaFleur and Holm”).

The majority interprets 18 U.S.C. § 1111 (b) as imposing a minimum sentence of life imprisonment for first degree murder and not allowing for downward departures for any mitigating circumstances. Although it is distinctly possible that the Supreme Court would consider this strict interpretation of the statute constitutional under its recent opinion in Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991), I see no reason why we should adopt this construction as a matter of statutory interpretation. We have available to us an equally permissible construction of the statute that permits downward departures for mitigating circumstances from the presumptively applicable sentence of life imprisonment. The rule of lenity counsels that we opt for this alternate construction.

It is undisputed that, under U.S.S.G. § 5G1.1, “when a statute requires a sentence different than that set by the guidelines, the statute controls.” United States v. Sharp, 883 F.2d 829, 831 (9th Cir.1989) (per curiam). The question…