United States v. Bennett

870 F.3d 34

1st Cir.

2017

Check Treatment

Docket

George H. BENNETT, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.

No. 16-2039

United States Court of Appeals, First Circuit.

September 5, 2017

we need not definitively decide this point. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“).

Undeterred, Corbett takes another tack at avoiding the enhancement: Emphasizing that Gillis sold the pills “on her own at a profit,” Corbett argues that Corbett and Gillis were, at best, partners in this pill-peddling enterprise. And, citing a pair of out-of-circuit cases, he insists that the enhancement requires “something more than a ‘partner’ type relationship” like what we have here. (Citing United States v. Parker, 241 F.3d 1114 (9th Cir. 2001); United States v. Butler, 207 F.3d 839 (6th Cir. 2000).) We are unpersuaded.

Unlike Parker and Butler, this is not a case where the minor was an equal partner of the defendant. See Parker, 241 F.3d at 1120-21 (finding enhancement inapplicable where there was no evidence “that the defendant acted affirmatively to involve the minor in the [bank] robbery, beyond merely acting as his partner“); Butler, 207 F.3d at 849 & n.3 (finding enhancement inapplicable where “[t]he facts, at best, show only that [twenty-year-old defendant] and [seventeen-year-old minor] possessed equal authority in their commission of the [bank] robbery“).¹⁶ Corbett, as Gillis testified, was her sole supplier of oxycodone pills. See Acosta, 534 F.3d at 588. Gillis had no say in the price that she paid for the pills; Corbett set the price at $22 per pill. Additionally, he fronted her pills on multiple occasions, encouraging her to accept pills she “could not pay for” with the understanding that she would “pay for [them] the next time.” In short, the record belies Corbett‘s characterization of his relationship with Gillis as an equal partnership.

We therefore reject Corbett‘s challenge to the district court‘s application of the use-of-a-minor enhancement.

CONCLUSION

For these reasons, we affirm Corbett‘s conviction and sentence.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellant.

James S. Nixon, Assistant Federal Defender, with whom Federal Defender Office—Bangor Branch was on brief, for appellee.

Before BARRON, Circuit Judge, SOUTER, Associate Justice,* and SELYA, Circuit Judge.

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

PER CURIAM.

On July 5, 2017, this court‘s opinion issued affirming the district court‘s decision granting petitioner George H. Bennett‘s motion pursuant to 28 U.S.C. § 2255. See Bennett v. United States, 868 F.3d 1, 2017 WL 2857620 (2017). On July 11, 2017, respondent-appellant filed a “Notice of Death,” informing this court that Bennett had died on June 30, 2017, before the opinion issued. Respondent-appellant filed a motion for the withdrawal of the July 5, 2017 opinion. Counsel for petitioner-appellee filed an opposition to the motion.

We assume, without deciding, that we had jurisdiction at the time that the opinion issued and that we are not required, because of the post-decision notice of Bennett‘s death, to withdraw the opinion and vacate the judgment as moot. Compare Robinson v. California, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962) (denying, without opinion, motion to abate Court‘s judgment overturning appellant-defendant‘s state court conviction where the judgment had issued after appellant‘s death but before notice to the Court of appellant‘s death (with three justices dissenting)) and 13B Charles Alan Wright, et al., Federal Practice and Procedure § 3533.1 (3d ed.) (“If a case actually is decided before the court learns of an event that mooted the dispute before decision, it is possible to vacate the decision, but this course is not uniformly followed.“), with United States v. Juvenile Male, 564 U.S. 932, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011) (per curiam) (vacating judgment of Ninth Circuit on grounds that appeal had been rendered moot by events that occurred more than a year before decision issued, but were unknown to the court at time of issuance); see also Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 590 F.3d 725, 728 (9th Cir. 2009) (stating, in dicta, that, even where mooting event occurred before decision issued, but request to dismiss case for mootness was filed after decision issued, “dismissing an appeal after rendering our decision is an exercise within our discretion“); but see In re Pattullo, 271 F.3d 898, 902 (9th Cir. 2001) (stating that, where court learned of mooting event before mandate issued, “[w]e lack jurisdiction over this case and must accordingly vacate our memorandum disposition and dismiss this appeal“); Commodity Futures Trading Comm‘n v. Board of Trade of City of Chicago, 701 F.2d 653, 658 (7th Cir. 1983) (stating that “since mootness is jurisdictional,” appeals court was “required” to consider whether suit was moot at the time that appeal court decision issued).

We choose, however, to exercise our discretion to grant the respondent-appellant‘s motion for withdrawal of our July 5, 2017 opinion because the case is now moot. Counsel for petitioner-appellee has failed to identify any collateral consequences that continue to flow from the sentence enhancement challenged by petitioner. In light of petitioner‘s death, the opinion of July 5, 2017 is withdrawn, and the judgment of the same date is vacated as moot. The case is remanded to the district court with instructions to dismiss the habeas petition as moot. See Medina v. Chappell, 782 F.3d 1115 (9th Cir. 2015); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003); Gornto v. MacDougall, 482 F.2d 361 (5th Cir. 1973).

We note that, while the motion for withdrawal of the opinion has been pending, another panel of this court “endorse[d] and adopt[ed]” the “reasoning” of the July 5, 2017 Bennett opinion as its own. See United States v. Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017). Although that Bennett opinion is withdrawn as moot, it will remain accessible, for the benefit of those who desire to learn in detail the “reasoning” that the Windley decision chose to “endorse and adopt.” Id.

Notes

We note that there‘s a circuit split on whether the enhancement must be based on a defendant‘s own affirmative actions or whether it can be applied based on a coconspirator‘s reasonably foreseeable use of a minor, see (collecting cases), and that this court has already weighed in on this debate, see (holding that, in conspiracy case, defendant‘s “sentence could be enhanced based on his co-conspirator‘s reasonably foreseeable use of juveniles to further the [organization]‘s activities“). We need not concern ourselves with this nuance, however, because the question of the enhancement‘s applicability on these facts concerns only Corbett‘s actions.

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