United States v. Roy Joey
2017 U.S. App. LEXIS 957
| 9th Cir. | 2017Background
- Defendant Roy Red Joey had a prior 1992 conviction for aggravated sexual abuse of a child and was required to register as a sex offender.
- In 2011 Joey was tried for four incidents of sexual touching of two minors; the jury convicted him on two counts under 18 U.S.C. § 2244(a)(5) and two counts under 18 U.S.C. § 2260A (committing a felony involving a minor while required to register).
- The PSIR calculated the § 2244(a)(5) Guideline offense level under § 2A3.4, applied Chapter 3 multiple-count rules, and then applied § 4B1.5 (repeat and dangerous sex offender against minors) to set offense level at 37 (later adjusted to 39 by the district court).
- For the § 2260A counts the PSIR used § 2A3.6, which prescribes the statutory consecutive 10-year term and directs that Chapters Three and Four not apply to counts covered by § 2A3.6.
- Joey argued the district court procedurally erred (impermissible double counting) by applying § 4B1.5 to the § 2244(a)(5) convictions while also imposing the § 2260A sentence; he contended § 2A3.6 (and its Application Note 3) precluded § 4B1.5 application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2A3.6/Application Note 3 forbids applying § 4B1.5 to underlying § 2244(a)(5) counts when § 2260A also applies | Joey: Application Note 3 bars applying any "specific offense characteristic" based on the same conduct as the § 2260A conviction, which should include § 4B1.5 | Government/District Court: § 4B1.5 is a Chapter 4 repeat-offender provision (not a Chapter 2 "specific offense characteristic") and § 2A3.6 does not expressly preclude § 4B1.5 | Court: Rejected Joey’s reading; § 4B1.5 is not a Chapter 2 specific offense characteristic and § 2A3.6/Application Note 3 does not bar § 4B1.5 application |
| Whether applying § 4B1.5 together with a § 2260A conviction constitutes impermissible double counting | Joey: Both provisions punish the same conduct, so applying both doubles punishment for the same acts | Government: §§ 4B1.5 and 2260A serve distinct purposes; Guidelines and § 5G1.2 treat the § 2260A statutory consecutive term independently | Court: No double-counting error; Commission intended cumulative application absent explicit prohibition, and § 5G1.2 requires treating the § 2260A consecutive term independently |
| Proper approach for calculating Guidelines when statutory consecutive sentence exists | Joey: Overlap should reduce Guidelines or affect sentence | Government: Determine Guidelines for underlying offense independently, then impose statutory consecutive term | Court: Affirmed independent Guidelines calculation for the underlying § 2244(a)(5) counts and separate imposition of § 2260A term |
| Whether any procedural sentencing error occurred | Joey: Procedural error in Guidelines calculation | Government: No procedural error; district court properly applied Guidelines and considered § 3553(a) factors | Court: No procedural error; calculation affirmed |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (2005) (Guidelines advisory post-Booker)
- Gall v. United States, 552 U.S. 38 (2007) (Guidelines as the starting point and benchmark)
- United States v. Smith, 719 F.3d 1120 (9th Cir. 2013) (double-counting analysis focuses on Commission intent)
- United States v. Neal, 776 F.3d 645 (9th Cir. 2015) (consider all applicable Guidelines provisions)
- United States v. Holt, 510 F.3d 1007 (9th Cir. 2007) (cumulative application allowed when each provision serves a unique purpose)
- United States v. Basa, 817 F.3d 645 (9th Cir. 2016) (upholding application of multiple enhancements that account for separate offense characteristics)