Arcand

MEMORANDUM *

Pathetic events led to a fire, a death, and the conviction of Bobbi Jo Wing and Kenneth Arcand for first-degree murder. There is no legal basis for overturning Appellants’ convictions.

Appellants argue that the district court improperly implied it possessed discretion in sentencing by instructing the jury that “punishment ... is for the court to decide.” The judge, however, added “You may not consider punishment in de *510 tiding whether the government has proved its case against a Defendant beyond a reasonable doubt.” When read as a whole, the instruction properly distinguishes the fact-finding role of the jury from the sentencing role of the court, and does not make the implication suggested by Appellants.

Appellants argue the district court had the power and obligation to depart downward from the statutory minimum sentence of life imprisonment. Under United States v. LaFleur, however, the district court had no authority to depart downward from the statutory minimum of life imprisonment for first-degree murder. See U.S. v. LaFleur, 971 F.2d 200, 208 (9th Cir.1991). Nor did the district court have authority to depart downward under United States v. Booker, 543…

concurring:

I write separately to express my dismay at the consequences of the result we reach. Although I concur in the memorandum disposition and join fully in its legal analysis, I find the outcome of this case to be troubling.

Even the Government appears to accept that the terrible death of the victim here was an unintended consequence of the defendants’ act of burning down a house they viewed as theirs, in order to end a long-running family disagreement. It has not been disputed that the defendants acted without knowledge that the victim, previously seen getting into a car, had returned to the house and fallen asleep in a bedroom. Nothing reflects any intent on the part of the defendants to injure the victim or anyone else. Aside from this one episode, the defendants have had only a few minor brushes with the law. Yet the mandatory sentences of life imprisonment mean that the lives of these young people, aged 25 and 21 at the time of conviction, may be entirely squandered in prison. It is appropriate that the defendants be seriously punished for what they did, but these life sentences do not square with my concept of justice.

I do not suggest that a mandatory sentence of…