United States v. Oliver

206 F. App'x 716

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2006
• Docket: No. 01-10372
• Status: Published

Opinion

MEMORANDUM

**

Donovan Dwayne Oliver appeals from the 240-month sentence imposed after the district court granted his motion for relief under 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Oliver contends that the district court lacked subject matter jurisdiction over the carjacking charge, 18 U.S.C. § 2119, because there was insufficient evidence of federal nexus to interstate transportation. Because the parties stipulated that the vehicle had been “transported, shipped and received in interstate and foreign commerce,” we conclude the district court had jurisdiction. See United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987) (holding that parties may stipulate to facts from which jurisdiction may be inferred).

Oliver also contends that his sentence violated the equal protection clause to the extent that his sentence exceeded the maximum term he could receive for carjacking under California state law. We decline to reach the issue. See United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995) (declining to reach an equal protection claim because defendant did not raise it in the district court).

Next, Oliver contends that the district court erred by increasing his offense level by four levels for serious injury, pursuant to U.S.S.G. § 2B3.1, because the injury was not specifically charged in the indictment and proven beyond reasonable doubt. Because Oliver was sentenced in 2001 under the then-mandatory guidelines and made an objection in the district court sufficient to preserve a Sixth Amendment challenge, he is entitled to have his sentence vacated and remanded for resentencing unless the government can demonstrate that the error is harmless. See United States v. Beng-Salazar, 452 F.3d 1088, 1091-92, 1097 (9th Cir.2006). Under the unusual circumstances of this case, which include the fact that the district court has sentenced Oliver three times to the statutory maximum sentence and we believe could, and would, do so again upon remand, we conclude the error is harmless. See United States v. Menyweather, 447 F.3d 625, 634 (9th Cir.2006).

Finally, we reject Oliver’s contention regarding the district court’s upward departure under U.S.S.G. § 2K2.4 because it is unsupported by argument or pertinent authority. See United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.