United States v. Domenick Howard

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2019
• Docket: 17-30187
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30187

Plaintiff-Appellee, D.C. No. CR 16-14-H-CCL v.

DOMINICK JAMES HOWARD, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding

Submitted February 8, 2019** Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and FREUDENTHAL,*** District Judge

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation. 1 Defendant Dominick James Howard appeals his 120-month sentence

following his guilty plea for one count of possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C. §

1291, and affirm.

On appeal, Howard challenges the district court’s finding that Mont. Code

Ann. § 45-5-502 subjected him to the mandatory minimum penalty of ten years

pursuant to 18 U.S.C. § 2252A(b)(2). We review de novo whether prior

convictions support statutory mandatory-minimum enhancements. United States v.

Sullivan, 797 F.3d 623, 635 (9th Cir. 2015) (citation omitted). The district court

did not err in applying the sentencing enhancement. United States v. Sinerius, 504

F.3d 737, 741-42 (9th Cir. 2007) (finding Mont. Code Ann. § 45-5-502 qualified as

a prior conviction for sexual abuse). Howard claims Sinerius should be

reconsidered, but this panel has no power to overrule circuit precedent. Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that circuit

precedent may be overturned only en banc, subject to exceptions not applicable

here).

The district court did not err in altering its oral pronouncement at sentencing

by imposing restitution in the written judgment. “[W]ithin 14 days after

sentencing, the court may correct a sentence that resulted from . . . clear error.”

Fed. R. Crim. P. 35(a). Howard’s restitution was mandatory. 18 U.S.C. §

2 2259(b)(4). The district court was authorized to correct the clear error in its oral

pronouncement.

AFFIRMED.