USA V. DANNY FABRICANT, No. 13-50526 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION NOV 23 2015 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. U.S. COURT OF APPEALS Nos. 13-50526 14-50428 15-50032 D.C. No. 2:03-cr-01257-RSWL DANNY JOSEPH FABRICANT, MEMORANDUM* Defendant - Appellant. Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding Submitted November 18, 2015** Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges. In these companion appeals, Danny Joseph Fabricant appeals pro se from various district court orders. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. In Appeal No. 13-50526, Fabricant contends that the district court erred by * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). declining to file his ex parte application for an order declaring 21 U.S.C. § 851 unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013). We affirm because, even if Fabricant is correct that his application should have been filed and considered on the merits, he is not entitled to relief. See id. at 2160 n.1 (declining to revisit the holding of Almendarez-Torres v. United States, 523 U.S. 224 (1998), that a prior conviction is not an element of the offense that must be proven to a jury). In Appeal No. 14-50428, Fabricant contends that the district court erred by denying his application for DNA testing pursuant to 18 U.S.C. § 3600. We review de novo. See United States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015). The district court properly denied the application because Fabricant did not identity a theory of defense that would prove his actual innocence. See 18 U.S.C. § 3600(a)(6); Watson, 792 F.3d at 1179 (proposed testing must be capable of showing a probability of guilt “so low that actual innocence would be the only sensible explanation”). Finally, in Appeal No. 15-50032, Fabricant challenges the district court’s order denying his application for an order requiring that (1) the government and the district court stamp his mail as “LEGAL MAIL – OPEN ONLY IN PRESENCE 2 13-50526, 14-50428 & 15-50032 OF INMATE,” and (2) the warden maintain a log for prison mailroom staff to sign upon receipt of Fabricant’s outgoing legal mail. Because Fabricant’s claim lacks merit, the district court properly denied relief. See Indep. Training & Apprenticeship Program v. California Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013). Appeal Nos. 13-50526, 14-50428 & 15-50032: AFFIRMED. 3 13-50526, 14-50428 & 15-50032
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