United States v. Stanley Dale Pearson, Sr.

321 F.3d 790, 2003 Cal. Daily Op. Serv. 1637, 2003 Daily Journal DAR 1637, 2003 U.S. App. LEXIS 3458, 2003 WL 471123

Opinion

ORDER

The opinion filed on December 16, 2002 [312 F.3d 1287], is amended as follows:

At 312 F.3d at 1289, before “AFFIRMED”, insert the following paragraph:

Pearson urges us to apply the rule of lenity. Lenity cannot be invoked merely because a different reading of the statute is possible. The rule of lenity may apply only when a statute remains ambiguous after resort to canons of statutory construction. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). The statute must be read in the light of the principle preventing a criminal profiting from his crime. The principle is not ambiguous, and the principle is controlling. Consequently, the statute is unambiguous, leaving leniency without a place.

With this amendment, the petition for rehearing is DENIED. Judge Berzon would grant the petition for rehearing.