United States v. Jeremy Cherry

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 30, 2020
• Docket: 19-30127
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30127

Plaintiff-Appellee, D.C. No. 2:18-cr-00146-JCC-1

v.

JEREMY JAMES CHERRY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Jeremy James Cherry appeals from the district court’s judgment and

challenges the 120-month sentence imposed following his guilty-plea conviction

for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* 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). Cherry contends that, because his prior Washington state conviction for first-

degree rape of a child did not require proof of intent, it does not constitute a state

conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward,” and the district court should not have applied

the 10-year mandatory minimum under 18 U.S.C. § 2252(b)(2). As Cherry

concedes, this claim is foreclosed by United States v. Sullivan, 797 F.3d 623, 640

(9th Cir. 2015) (prior state offenses were offenses “relating to” sexual abuse of a

minor under § 2252(b)(2) even though they lacked the mens rea requirement of the

generic federal offense). Because Cherry has not shown that Sullivan is “clearly

irreconcilable” with intervening higher authority, Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003) (en banc), we are bound to follow Sullivan. See United States

v. Arriaga-Pinon, 852 F.3d 1195, 1199 (9th Cir. 2017).

In light of this disposition, we need not reach the government’s arguments

that Cherry’s prior conviction is a categorical match for the generic federal offense

of abusive sexual conduct even without reliance on the “relating to” provision of

§ 2252(b)(2), or that any error in the district court’s application of the mandatory

minimum was harmless.

AFFIRMED.

2 19-30127