United States v. Hanson, No. 18-30037 (9th Cir. 2019)
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Defendant appealed his sentence imposed for receipt of child pornography in violation of 18 U.S.C. 2252(a)(2) and a consecutive prison sentence imposed under 18 U.S.C. 3583(k), upon revocation of his supervised release. The panel held that the district court plainly erred by violating the Constitution's Ex Post Facto Clause when it sentenced defendant under section 3583(k). Therefore, the panel vacated and remanded for complete resentencing.
The panel affirmed defendant's 2017 conviction because the district court did not abuse its discretion by admitting evidence related to defendant's prior 2007 child pornography conviction under Federal Rules of Evidence 414 and 404(b). The panel explained that because defendant was sentenced for his supervised release violation and his 2017 conviction in the same proceeding, both were based on the same underlying conduct found by a jury beyond a reasonable doubt, and because it appears the district court was attempting to fashion an appropriate "sentencing package" to account for both transgressions, the panel followed its customary practice and remanded for resentencing on both the supervised release violation and the 2017 conviction.
Court Description: Criminal Law. The panel affirmed the defendant’s 2017 conviction for receipt of child pornography, vacated the sentences imposed for that conviction and for a violation of supervised release, and remanded for resentencing on both matters. The panel held that the district court did not abuse its discretion under Fed. R. Evid. 414 and 404(b) by admitting evidence related to the defendant’s 2007 child pornography conviction in his 2017 trial on similar charges. The panel held that the district court violated the Ex Post Facto Clause when it sentenced the defendant to five years’ imprisonment under 18 U.S.C. § 3583(k) (2006) upon revoking his supervised release rather than sentencing him under the statutes as they existed in 2005 when he committed his first child pornography offense. Under those statutes, the maximum term of reimprisonment the district court could impose after revoking the defendant’s supervised release on his Class C felony conviction was two years. Reviewing for plain error, the panel agreed with the government that the error was clear and obvious under governing law. The panel held that the record raises at least a reasonable probability that the district court would have imposed a lower total sentence if it had known that the maximum possible sentence on revocation of supervised UNITED STATES V. HANSON 3 release was two years rather than five, and that the error affected the defendant’s substantial rights. The panel concluded that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings, requiring a remedy. Explaining that the “sentencing package” approach to this case is appropriate, the panel vacated the sentences for both the supervised release violation and the 2017 conviction, and remanded for resentencing. The panel wrote that the district court is free to fashion an appropriate combined sentence on remand, provided it does not impose a sentence greater than two years on the supervision matter.
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