United States v. Jason Dunlap

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2018
• Docket: 16-30211
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30211

Plaintiff-Appellee, D.C. No. 3:15-cr-00107-SI-1

v. MEMORANDUM* JASON ANDREW DUNLAP,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted July 10, 2018 Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,** District Judge.

Jason Andrew Dunlap (“Defendant”) appeals his sentence, arguing that the

district court miscalculated the applicable guideline range and erroneously

concluded it lacked authority to sentence Defendant below the statutory mandatory

minimum. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. We vacate and remand for resentencing in light of United States v. Reinhart, 893

F.3d 606 (9th Cir. 2018).

The parties first addressed Reinhart in Rule 28(j) letters filed shortly before

oral argument. Defendant had previously conceded that the prior state conviction

charged in the Information triggered a 25-year mandatory minimum sentence

under 18 U.S.C. § 2251(e). However, Reinhart constitutes an intervening change

in the law that may affect the analysis of this issue, and the parties agree that

remand is appropriate to allow the district court to evaluate in the first instance the

potential impact of Reinhart on the applicable statutory mandatory minimum.

Because we find that remand is appropriate in light of Reinhart, we decline to

address at this juncture the other issues raised in Defendant’s appeal.

VACATED and REMANDED for resentencing.