United States v. James H. Gallaher, Jr.

concurring and dissenting:

I concur in Parts I, II, and IV of the opinion.

I respectfully dissent from Part III of the opinion.

*795 The majority has concluded that the district court erred in enhancing Gallaher’s sentence pursuant to 18 U.S.C. § 924 (e) because the certificate and order of discharge he received in 1989 (“1989 Certificate”), based on his conviction in 1985 for second-degree assault, does not expressly prohibit the possession of firearms. The majority cites our decisions in United States v. Herron, 45 F.3d 340 (9th Cir. 1995), and United States v. Laskie, 258 F.3d 1047 (9th Cir.2001), in support of this proposition. As I explain below, these cases are not dispositive because they address a totally different question: Can a prior state conviction be used as an element of the crime of being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1) where the accused has received a certificate and order of discharge that does not prohibit the possession of weapons?

We did not consider in Herron or Laskie the discrete question presented in this appeal: Whether Gallaher’s sentence for being a felon in possession of a firearm can be enhanced based on…

Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge ALARCON.

James H. Gallaher, Jr., a Colville Indian who resides in the Nespelem district of the Colville Indian Reservation, appeals from the judgment of conviction for the crime of possession of ammunition, after being convicted of a crime punishable by imprisonment for a term exceeding one year, as proscribed by 18 U.S.C. § 922 (g)(1). He contends that the district court lacked subject matter jurisdiction under the May 9, 1891, agreement between the Colville Confederated Tribes and the United States (the “Colville Treaty”).

’Gallaher also seeks reversal of his sentence as violative of the same treaty. He further contends that the district court erred in concluding that his 1985 conviction of second-degree assault constitutes a predicate offense under 18 U.S.C. § 924 (e) because he received a Certificate and Order of Discharge on January 26, 1989 (“1989 Certificate”) for that prior conviction. Finally, he asserts that the district court abused its discretion in prohibiting him from possessing any bows, crossbows, *787 and arrows, as a condition of his supervised release, contending that the restriction…

275 F.3d 784 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JAMES H. GALLAHER, JR., DEFENDANT-APPELLANT. No. 00-30068 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 10, 2001 Filed Dec. 26, 2001 [Copyrighted Material Omitted] Kenneth K. Watts, Spokane, Washington, for the defendant-appellant. Joseph H. Harrington, Assistant United States Attorney, Spokane, Washington, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding D.C. No. CR 99-0111 EFS Before: Arthur L. Alarcon, Ferdinand F. Fernandez, A. Wallace Tashima, Circuit Judges. Opinion by Judge Tashima; Partial Concurrence and Partial Dissent by Judge Alarcon TASHIMA, Circuit Judge: 1 James H. Gallaher, Jr., a Colville Indian who resides in the Nespelem district of the Colville Indian Reservation, appeals from the judgment of conviction for the crime of possession of ammunition, after being convicted of a crime punishable by imprisonment for a term exceeding one year, as proscribed by 18 U.S.C. §§ 922 (g)(1). He contends that the district court lacked subject matter…