United States v. Joey Clark

452 F.3d 1082 UNITED STATES of America, Plaintiff-Appellee, v. Joey CLARK, Defendant-Appellant. No. 05-10480. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 19, 2006. Filed July 5, 2006. Mario D. Valencia, Henderson, NV, for the appellant. Daniel G. Bogden and Robert L. Ellman (argued), U.S. Department of Justice, Las Vegas, NV, for the appellee. Appeal from the United States District Court for the District of Nevada, Philip M. Pro, Chief District Judge, Presiding. D.C. No. CR-03-00214-PMP. Before: B. FLETCHER, KOZINSKI, and FISHER, Circuit Judges. BETTY B. FLETCHER, Circuit Judge: 1 Joey Clark appeals his 46-month sentence for unlawful possession of a firearm. He asserts that the district court violated United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), by failing to treat the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines") as advisory; applied the Guidelines in an unreasonable manner; and erroneously found facts that should have been sent to a jury and/or proved beyond a reasonable doubt — or failed to adequately make any factual finding whatsoever. We have jurisdiction pursuant to, inter…

Joey Clark appeals his 46-month sentence for unlawful possession of a firearm. He asserts that the district court violated *1084 United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), by failing to treat the United States Sentencing Guidelines (“Sentencing Guidelines” or “Guidelines”) as advisory; applied the Guidelines in an unreasonable manner; and erroneously found facts that should have been sent to a jury and/or proved beyond a reasonable doubt — or failed to adequately make any factual finding whatsoever. We have jurisdiction pursuant to, inter alia, 18 U.S.C. § 3742 , and we review the sentence as a whole for reasonableness. United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.2006).

We remand for resentencing on the sole ground that we cannot determine whether the district court made any factual finding to support a two-level enhancement for carrying a gun with an obliterated serial number. We reject all other arguments raised by Clark in this appeal.

BACKGROUND

On April 30, 2003, North Las Vegas police executed a traffic stop of an automobile moving at a high speed. Appellant Joey Clark, a passenger in the car, was asked to exit the vehicle,…

While I agree with much in the majority opinion, and concur in the result, I cannot agree with my colleagues that “it was not unreasonable for [government] counsel to so interpret” the district court’s statement as a finding of fact. Maj. op. at 7374. In fact, no reasonable lawyer would have tried to pass off the district court’s remark as a finding; government counsel was trying to pull a fast one.

To begin with, the district judge did not find — and could not have found — the serial number was obliterated because the matter was not submitted to him for decision. While the defendant objected to the PSR’s claim that one of the guns in Clark’s possession had an obliterated serial number, the on-the-record colloquy on this matter centered entirely on whether Clark had admitted that fact when he pleaded guilty. After hearing from defense counsel, the prosecutor and the probation officer, the district court overruled the objection, apparently on the ground that defendant’s admission was sufficient — a proposition the government does not defend on appeal. If the district court had also made an independent finding that the serial number was obliterated, this is the point in the…