United States v. Edward Evey

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2020
• Docket: 18-50177
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50177

Plaintiff-Appellee, D.C. No. 2:97-cr-00468-SVW-1 v.

EDWARD EVEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted July 6, 2020** Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and MELGREN,*** District Judge.

Following two jury trials in 1998, Edward Evey was convicted of one count

of attempted arson in violation of 18 U.S.C. § 844(i) and one count of using a

* 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 Eric F. Melgren, United States District Judge for the District of Kansas, sitting by designation. destructive device during a crime of violence—attempted arson—in violation of 18

U.S.C. § 924(c). He was also convicted of one count of being a felon in possession

of a firearm, one count of possession of a firearm with an obliterated serial

number, and one count of possession of an unregistered firearm, in violation of 18

U.S.C. § 922(g), § 922(k), and 26 U.S.C. § 5861(d), respectively. He was

sentenced to 140 months’ imprisonment on each of the three firearm counts and the

attempted arson count, to be served concurrently. The district court additionally

imposed a 360-month mandatory term of imprisonment under 18 U.S.C. § 924(c),

to be served consecutive to Evey’s other sentences.

The district court vacated Evey’s § 924(c) conviction in 2018 following the

Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015),

and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Evey v. United States, No. 2:16-

cv-08900-SVW, 2018 WL 6133407, at *9 (C.D. Cal. May 10, 2018). At a

resentencing hearing on the remaining four counts, the district court sentenced

Evey to thirty years’ imprisonment and three years’ supervised release. Evey now

appeals that sentence. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C

§ 1291, and we vacate Evey’s sentence and remand to the district court for a full

resentencing.

1. Evey contends that the district court exceeded its authority by issuing

a sentence greater than the statutory maximum for a violation of § 844(i).

2 Although neither the sentencing transcript nor judgment indicate for which count

(or counts) the district court intended to impose the sentence, the government

agrees the thirty-year term applies only to Evey’s attempted arson conviction.

However, a conviction for attempted arson carries a maximum imprisonment term

of twenty years. 18 U.S.C. § 844(i) (1994). Although Evey did not object at

sentencing, the government now concedes that the district court committed plain

error by imposing a sentence exceeding the twenty-year statutory maximum.

United States v. Lomow, 266 F.3d 1013, 1022 (9th Cir. 2001), superseded by

statute in part as recognized by United States v. McEnry, 659 F.3d 893, 899 n.8

(9th Cir. 2011).

The government, however, requests that we remand the matter to the district

court for the limited purpose of reapportioning the thirty-year sentence to run

consecutively across the multiple counts of conviction. We decline to do so.

When we vacate one sentence of a multi-sentence package, the “remand of all

sentences is often warranted.” United States v. Evans-Martinez, 611 F.3d 635, 645

(9th Cir. 2010). Although the government insists that the district court clearly

intended to impose consecutive sentences, we find no support in the record for that

assumption. Thus, we cannot conclude that “it is clear the district court would

impose the same [cumulative] sentence on remand.” Id. at 645. Accordingly, we

vacate Evey’s sentence in its entirety and remand for the district court to conduct

3 resentencing anew.

Evey advances additional arguments on appeal. He maintains that the

district court miscalculated his advisory range under the Sentencing Guidelines,

that the district court failed to adequately explain its above-Guidelines sentence,

and that the district court imposed a substantively unreasonable sentence. We do

not address these arguments because we remand for a full resentencing.1

2. Evey also requests that we reassign his case to a different district court

judge for resentencing. Only “unusual circumstances” warrant reassignment.

United States v. Paul, 561 F.3d 970, 975 (9th Cir. 2009) (quoting United States v.

Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)). We consider several factors to

determine whether such circumstances exist, including:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Id. After reviewing the record, we conclude that these factors do not weigh in

favor of reassignment. Accordingly, we deny Evey’s request.

VACATED and REMANDED.

1 Although we do not reach the issue, we note the parties agree that the district court imposed terms of supervised release deemed unconstitutional by this court in United States v. Evans, 883 F.3d 1154, 1162–64 (9th Cir. 2018).