UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN RICO DOSS, Defendant-Appellant.
No. 07-50334
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed January 14, 2011, Amended March 15, 2011
D.C. No. CR-05-00627-SGL-01
Appeal from the United States District Court for the Central District of California Stephen G. Larson, District Judge, Presiding
Argued and Submitted March 9, 2009—Pasadena, California
Submission Vacated March 24, 2009 Resubmitted August 20, 2009
Submission Vacated January 4, 2010 Resubmitted December 1, 2010
Before: Michael Daly Hawkins, Marsha S. Berzon and Richard R. Clifton, Circuit Judges.
Opinion by Judge Hawkins
Davina T. Chen (briefed and argued), Office of the Federal Public Defender, Los Angeles, California, for the defendant-appellant.
Anne Voigts (argued) and Tammy C. Spertus (briefed), Office of the United States Attorney, Los Angeles, California, for the plaintiff-appellee.
Appellant‘s Petition for Panel Rehearing is GRANTED for the limited purpose of amending footnote 11 of the Opinion, cited at 2011 WL 117628 (9th Cir. January 14, 2011).
The Opinion is hereby amended to add the following paragraph to the end of footnote 11:
As part of these proceedings on remand, the district court is free to consider all legal or factual defenses raised by Doss to the imposition of the mandatory life sentence. United States v. Kellington, 217 F.3d 1084, 1092-95 (9th Cir. 2000). Should the court conclude that the mandatory life sentence is not required on Counts 4, 5, and 6, the court may, but is not required to, reconsider the life sentence imposed on Count 2. United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000).
No future petitions for rehearing or petitions for rehearing en banc will be accepted in this matter.
OPINION
HAWKINS, Circuit Judge:
Juan Rico Doss (“Doss“) appeals his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The issue before us is whether one can be convicted for witness tampering under
FACTS AND PROCEDURAL HISTORY
Doss was indicted in 2005, along with his wife Jacquay Ford (“Ford“), for numerous counts of sex trafficking of children and transportation of minors into prostitution. At Doss‘s first trial, the government called a minor victim, C.F., as a witness, and she refused to testify. The government did not call Ford as a witness. A mistrial resulted when the jury was unable to reach a verdict.
A grand jury then issued a superseding indictment against Doss, adding three charges of witness tampering, involving C.F., Doss‘s wife, and a fellow prisoner, Mark Cohn. Count 7 alleged that Doss had tampered with juvenile witness C.F.:
Between on or about April 11, 2006 and April 13, 2006 defendant Juan Rico Doss knowingly used intimidation, threatened and corruptly persuaded, and attempted to intimidate, threaten and corruptly persuade C.F., with the intent to influence and prevent the testimony of C.F. in an official proceeding, and with the intent to cause and induce C.F. to withhold testimony from an official proceeding, namely, United States v. Juan Rico Doss, CR 05-627 (A) ER.
In so attempting, defendant Juan Rico Doss did things that were substantial steps toward intimidating, threatening and corruptly persuading C.F., including among other things, between on or about April 11, 2006 and April 13, 2006 when defendant Juan Rico Doss was transported with C.F. to or from
the official proceeding he told C.F., words to the effect that (1) if C.F. testified, everyone would get in trouble; and (2) if C.F. testified, it would be bad for C.F.
Count 8 alleged that Doss also tampered with his wife, Jacquay Ford:
Between on or about May 16, 2006 and May 21, 2006, ... defendant Juan Rico Doss knowingly corruptly persuaded, and attempted to corruptly persuade, Jacquay Quinn Ford with the intent to influence and prevent the testimony of Jacquay Quinn Ford in an official proceeding and with the intent to cause and induce Jacquay Quinn Ford to withhold testimony from an official proceeding, namely, United States v. Juan Rico Doss, CR 05-627(B) - SGL.
In so attempting, defendant Juan Rico Doss did things that were substantial steps toward intimidating, threatening and corruptly persuading Jacquay Quinn Ford, including among other things: (1) in a letter dated May 16, 2006, defendant Juan Rico Doss encouraged Jacquay Quinn Ford to refuse to testify against him at trial by stating “Believe me if I got to go back to trial which is most likely I will if I don‘t get a 5 year deal, they are going to try you again to come testify which they made clear against me and if and when that time comes, I would expect you to hold strong and say NO that you won‘t even get on the stand period“; and (2) in letters dated May 16, 18, 21, 2006, defendant Juan Rico Doss encouraged Jacquay Quinn Ford to refuse to testify against him based on their marital status.
Doss moved to dismiss the witness tampering charges, contending they did not allege a crime because there was nothing
At Doss‘s second trial, C.F. testified against Doss, as did Doss‘s wife, Ford. As evidence of Count 8, the Government offered three letters written by Doss to his wife. The letters were written while both were in custody on the charges in the present case; all references to Doss‘s first trial were redacted from the versions presented to the jury. At the time Doss wrote these letters, he was unaware that Ford had entered into a cooperation agreement with the Government; it appears that, at most, Ford had told Doss that she had agreed to plead guilty. The relevant language from the first of these letters is quoted in the indictment, above.
In a second letter, Doss notified Ford of his anticipated trial date, then wrote, “I sure wish you were going to trial with me. You know the decision is yours to fire your attorney and take your plea back.” In the third letter, Doss wrote, “Jacquay as husband [and] wife we go through certain things and we sometimes have to make [and] take sacrifices for one another and remain strong together as one because we are one.”
With respect to witness tampering in Count 7, witness C.F. and a fellow prisoner, Mark Cohn, testified in substantially similar detail regarding a conversation that occurred between Doss and C.F. C.F. testified that one day she was transported back from the courthouse on the same van as Doss. She was placed in the front of the van, but separated from the male inmates by a metal divider and could not see who was speaking. She testified she could not recognize the voice and that she could not remember many specifics of the conversation. She did testify that the person had stated he knew she was there “to lie on them,” and that he had said something “about a guy named Broham,” saying “Broham did it” repeatedly.
Mark Cohn, another inmate who was transported from the courthouse during the same time frame for an unrelated matter, testified about overhearing a similar conversation. He described the layout of the van and accurately described C.F.‘s appearance. Stating that he had been seated on the same side of the metal divider as Doss, Cohn identified Doss as the speaker. Cohn recalled the following about the conversation:
It starts by “Hey, girl, how old are you?” and her response is, “Hell young; 15.” His response is, “I didn‘t know you were that young.”
He proceeded to talk about, “Are you going to testify?” and she says “Yeah. That‘s why they brought me up here.” “Well, you don‘t have to testify.”
She says, “Well, that‘s why I‘m here.” “Well, nobody has to testify. You don‘t testify. You don‘t talk. Nobody talks.” And then he said something like, “It‘s all Broham.”
And that was repeated.
Doss moved for acquittal on all counts at the close of the government‘s case and again at the close of trial, and the district court reserved ruling on the motion pursuant to
DISCUSSION
I. Witness Tampering
A. Factual/Legal Overview
[1] Doss argues that the district court erred by denying his motion to dismiss two witness tampering counts for failing to state a violation of
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
[2] The principal debate is over the meaning of the term “corruptly persuades.” All courts considering the issue have found this phrase to be ambiguous. United States v. Baldridge, 559 F.3d 1126, 1142 (10th Cir. 2009). There is currently a circuit split over the type of conduct that falls within the ambit of this phrase. Two of our sister circuits conclude that persuasion with an “improper purpose” qualifies (such as self-interest in impeding an investigation), while another concludes there must be something more inherently wrongful about the persuasion (such as bribery or encouraging someone to testify falsely). Compare United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996), and United States v. Shotts, 145 F.3d 1289, 1300-01 (11th Cir. 1998), with United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997).
In United States v. Khatami, we recognized the circuit split, but ultimately decided not to resolve the issue there because the circuits were in agreement that, at a minimum, persuading a witness to affirmatively lie to investigators would violate
As initially enacted,
The Second Circuit has construed “corruptly” to have the same meaning it did in
In Thompson, there was evidence that the defendant had urged his co-conspirators to conceal information and testify falsely to minimize his role in the offense. Later, however, the Second Circuit expanded the reach of its holding, concluding that one could violate
The Eleventh Circuit has embraced the Second Circuit‘s approach, concluding it is reasonable to interpret “corruptly” in
[3] The Third Circuit, however, takes a different tack. In United States v. Farrell, the defendant was charged under
[4] The Third Circuit thus read “the inclusion of ‘corruptly’ in
Finally, the Third Circuit expressly rejected the reasoning of Thompson because it did not find the use of “corruptly” in
As we consider which of these two competing approaches we should adopt, the Supreme Court‘s 2005 decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), offers some guidance. In Arthur Andersen, an accounting firm had been convicted under
The Court focused its attention on what it means to “knowingly ... corruptly persuade.” The Court commented that:
the act underlying the conviction— “persua[sion]“— is by itself innocuous. Indeed, “persuad[ing]” a person “with intent to ... cause” that person to “withhold” testimony or documents from a Government proceeding or Government official is not inherently malign. Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see
U.S. Const., Amdt. 5 , or a wife who persuades her husband not to disclose marital confidences, see Trammel v. United States, 445 U.S. 40 (1980).
Id. at 703-04 (emphasis added) (internal footnote omitted).4
Arthur Andersen explained that to convict the accounting company, the government had to prove the company “knowingly ... corruptly persuaded” its employees to destroy the documents, as opposed to instructing its employees to comply with a valid document retention policy. Although the parties relied on interpretations of “corrupt” in
Relying on the Third Circuit‘s approach and the Supreme Court‘s dicta in Arthur Andersen, Doss argues there was nothing “corrupt” about persuading his wife to exercise her marital privilege not to testify, and that therefore the district court should have granted his motion for acquittal.5 The government, however, asks this court to follow the Second and Eleventh Circuits’ decisions, based on the “statutory language and the longstanding construction of similar terms in
[5] Although the language of
In addition, as the Third Circuit points out, the examples of non-coercive “corrupt” persuasion cited by the House Report were bribery and attempting to persuade a witness to lie, both actions easy to characterize as inherently wrong or immoral, and not actions which could be considered otherwise innocent persuasion. See Farrell, 126 F.3d at 488. The Supreme Court similarly noted that the term “corrupt” and “corruptly” are normally associated with “wrongful, immoral, depraved, or evil,” and, when coupled with “knowingly” in
[6] We therefore conclude that the district court erred by failing to grant Doss‘s motion for acquittal of Count 8. In reviewing claims of sufficiency of the evidence, we review the evidence in the light most favorable to the government to determine “whether any rational trier of fact could have found
C. Count 7 (Witness Tampering with C.F.)
Doss argues that the district court also erred by failing to grant his motion for acquittal on Count 7, contending again that, consistent with the Third Circuit‘s approach, there was nothing inherently corrupt in persuading a co-conspirator to exercise a Fifth Amendment right validly possessed at the time of their encounter. Nonetheless, the indictment in this case alleges, and the evidence supports a finding, that Doss did more than innocently suggest C.F. exercise her constitutional rights.
[7] The indictment alleged Doss had made statements to the effect that “if C.F. testified, it would be bad for C.F.,” which could be construed as a threat or attempt to intimidate C.F. (especially in light of the prior pimp/prostitute relationship between C.F. and Doss). Although there was no specific testimony that Doss made the statement “it would be bad for C.F.,” both C.F. and Mark Cohn testified to a conversation in the transport van in which Doss repeatedly suggested to C.F. “it‘s all Broham.” From their testimony and the context of Doss‘s statements, a rational jury could have inferred that Doss was attempting to persuade C.F. to lie in her testimony
Doss argues that even if there was sufficient evidence for a conviction under
[8] Here, there was no material variance. The indictment and proof at trial both described the encounter between Doss and C.F. on the transport van on the dates alleged. See United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986) (“Insofar as the language of an indictment goes beyond alleging elements of the crime, it is mere surplusage that need not be proved.“). The indictment alleged that Doss had “among other things” told C.F. “words to the effect that” if C.F. testified, everyone would get in trouble and that it would be bad
Doss‘s argument appears to be that the government proved only that he had encouraged C.F. to provide false testimony, while the indictment only charged threats to influence her not to testify. He argues his defense was prejudiced because he intended to argue that stating “it would be bad for C.F.” to testify was not actually a threat, and thus that there was nothing wrong with the conduct alleged in the indictment. But even if this distinction constituted a material variance, Doss‘s defense would have been substantially the same regardless of the specific “corrupt” remarks alleged. For example, Doss attempted to show that Cohn could not have been in the van with C.F. and Doss to have overheard the statements, that C.F. could not have heard Doss clearly through a metal barrier in the transport van, and that C.F. lacked a vivid memory of the conversation and was generally not a good witness. This tactic would apply regardless of the specific statements alleged in the indictment.
Doss relies on United States v. Adamson, 291 F.3d 606, 610, 616 (9th Cir. 2002), in which the government alleged a single misrepresentation but proved a different one, after affirmatively representing that the conduct alleged in the indictment was the sole basis for the prosecution. See also United States v. Tsinhnahijinnie, 112 F.3d 988, 989-90 (9th Cir. 1997) (fatal variance where indictment alleged 1992 sexual abuse on Indian reservation, but trial testimony placed abuse off the reservation in 1994). But the indictment language in this case is more forgiving, suggesting there could be other statements beyond those alleged. See Adamson, 291 F.3d at 616 (“If the indictment had not specified a different
The indictment also sufficiently identified the time and place of the conversation to give Doss notice of what evidence might be presented at trial. See United States v. Antonakeas, 255 F.3d 714, 722 (9th Cir. 2001) (no fatal variance where the evidence at trial covered the facts and time frame alleged in indictment); see also United States v. Momeni, 991 F.2d 493, 495 (9th Cir. 1993) (no fatal variance where evidence showed defendant fraudulently used credit card at hotels in addition to the one charged in indictment in order to satisfy statutory minimum of $1000).
[9] In sum, the evidence at trial was sufficient to sustain a conviction on Count 7. Doss did more than merely ask his co-conspirator to exercise her Fifth Amendment right not to testify. Viewing the evidence in the light most favorable to the government, a rational juror could have inferred from the conversation in the transport van that Doss had asked C.F. to lie on the stand by blaming her former pimp instead of him. Persuading a witness to lie clearly runs afoul of
II. Motion to Sever
Doss argued to the district court that he would be prejudiced from joinder of the witness tampering counts with the sex trafficking counts because the jury would become aware of his first trial. The court denied the motion but ordered the parties to refer to the first trial as an “official proceeding,” and held that any potential prejudice could also be mitigated through jury instructions.
[10] We review the denial of a severance motion for an abuse of discretion. United States v. Lewis, 787 F.2d 1318, 1320 (9th Cir. 1986). A defendant must show that the failure
On appeal, Doss contends the district court‘s precautions did not ensure a fair trial. He claims that even though any written references to the former trial were redacted and both sides consistently referred to the former trial as an “official proceeding,” the jury must have been able to glean that the prior proceeding was a trial. Doss then further argues that even though the jury‘s knowledge of a prior trial would be only minimally prejudicial, the jury must have also discerned that there was some reason it was not supposed to know of the former trial, and that the conclusion the jury must have drawn was that Doss had tampered with witnesses at that trial.
Doss‘s conclusions are quite speculative. For example, Doss argues that the government equated official proceedings with trials in its opening statement. The government argued in its opening that “the defendant tampered with witnesses in official proceedings connected with this case” and that “one of the official proceedings is this very trial.” The government correctly notes that because a trial is a type of official proceeding does not mean that all official proceedings are trials; they could also be hearings or grand jury appearances.
As the district court also noted below with respect to the redacted letters, “a seasoned attorney or a prosecutor would be able to fill in the blank” but the jurors were just as likely to think the deleted phrases were expletives. Finally, Doss‘s ultimate conclusion—that he was prejudiced because the jury must have not only discerned there was a prior trial, but also concluded that it ended in mistrial because of defendant‘s tampering — heaps on even more speculation.
[11] The district court did not abuse its discretion by denying Doss‘s motion to sever and implementing precautions to prevent the jury from learning of the previous trial. There is no allegation that the government or witnesses failed to com-
III. Vouching
[12] Doss alleges that the government improperly vouched for the credibility of its witnesses and its case in closing argument. “Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness‘s veracity or suggesting that information not presented to the jury supports the witness‘s testimony.” United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (quotation omitted). The inherent danger is that “the prosecutor‘s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government‘s judgment rather than its own view of the evidence.” Id. at 1148 (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)).
Because Doss did not object to the government‘s closing argument, we review his claim of improper vouching for plain error. United States v. Williams, 989 F.2d 1061, 1071-72 (9th Cir. 1993). We will reverse for plain error only if an error was obvious, affected substantial rights, and a miscarriage of justice would otherwise result. United States v. Sayetsitty, 107 F.3d 1405, 1411-12 (9th Cir. 1997).
Doss objects to two passages. The first occurred in the government‘s initial closing argument, in which the government was discussing the testimony of Mark Cohn:
Now there‘s no question you have to consider Mark Cohn‘s testimony carefully. He‘s a convicted felon. The Government knows that. He‘s a fraudster, the Government knows that. The Government prosecuted him and convicted him of fraud. The Government is investigating, and he‘s cooperating with that
investigation, but you heard him say he‘s going to be pleading guilty to certain charges and he‘s going to be prosecuted again in connection with fraud. There‘s no question that Mark Cohn‘s testimony has to be considered carefully. But think of it this way: That‘s why the Government has prosecuted and convicted him, and that‘s why the Government is going to be charging him again. But that‘s also why he was uniquely situated to be where he was, and to see and hear what he did. Because that‘s who was in the transport van: inmates.
Doss characterizes this argument as telling the jurors that the government knew when Mr. Cohn was lying and when he was not. Doss also argues that it conveyed the impression that the government investigates and prosecutes people who are guilty, implying that the very fact Doss was on trial was evidence of his guilt.
[13] This characterization reads too much into the government‘s argument. Cohn‘s credibility at trial had been attacked on cross-examination and by the defense in its opening statements. The government‘s argument acknowledged that Cohn was not a perfect witness and that he had a history of lying and fraud. However, the government then pointed out that it was because of Cohn‘s crimes that he was in a position to overhear the conversation between Doss and C.F., while being transported in an inmate van. Nothing in this passage vouched for Cohn‘s credibility. Compare United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (prosecutor described witnesses as “very candid” and “honest“).
The second passage to which Doss objects occurred during the government‘s rebuttal:
Wow, what a Government conspiracy!
The Government has nothing better to do than to pressure people to get all on the same page and to make them come into a courtroom and lie just so that we can convict an innocent person. . . . .
I won‘t address every single point that defense counsel made. But for you to believe the defense in this case, you have to believe that the Government just wants to pressure witnesses to get up on the stand and all get in line on the same story to convict an innocent man, and that the government wants to pull in this fraudster, this completely unrelated individual in jail, to come in and lie to you as well.
However, Doss omits a substantial portion of the argument in between these two passages, in which the government argued:
For you to believe the defense, you have to believe that Tamica, Candace, and Jacquay are all lying to you. They are not the perfect witnesses. But they are the perfect victims. And the defense can‘t have it both ways. They point to their inconsistencies and tell you, “they can‘t possibly be telling you the truth.” But when the tales of what happened to them and how the defendant transported them for purposes of prostitution match up consistently and match up with the corroborating evidence, then it‘s a government conspiracy to get these people in here and put pressure on all of these other people to lie to you so that we can convict an innocent man.
Ask yourselves if that makes any sense. Ask yourselves if that makes any sense for these two girls to come in here and testify and just make up this story. And supposedly, it‘s to protect their own pimp.
You heard from Detective Haight. Yes, it‘s true, initially sometimes girls on the street, the prostitutes that are working on the tracks, don‘t readily identify their pimps. And you heard from him that oftentimes they do. But this case is not just resting on the testimony of Tamica and Candice in connection with what they told you about how the defendant transported them between states to work as prostitutes for him. There‘s all of the corroborating evidence in the case. And the defense just dismisses it.
[14] Viewed in context and in their entirety, the government‘s comments were therefore responsive to the defense‘s closing argument, in which counsel argued “Ms. Doss is here today because of lies. And those lies have three sources: the pimp‘s game, the government‘s pressure, and one con man‘s depravity.” (emphasis added). Defense counsel had also argued:
Now, the pressure in this case was tremendous. The power of the United States Attorney‘s office has few boundaries. And in this case, its tentacles reach into the relationship between a husband and his wife; between a 15-year-old girl and her freedom; and it even tried to convert a known con man into a star witness.
(emphasis added). And again:
There‘s another kind of pressure that‘s going on in this case, which is the pressure that the government puts on itself to win. And that pressure led to the very unfortunate decision to enlist a con man to convict Mr. Doss, to prop up baseless accusations of witness tampering, accusations that are not supported by the supposed victims of the tampering.
(emphasis added).
[15] “[A] prosecutor may respond substantially to a defense counsel‘s attack in order to right the scale.” United States v. Parker, 991 F.2d 1493, 1498 n.1 (9th Cir. 1993) (internal quotation marks and citation omitted). When the government‘s rebuttal remarks are placed in context, both within its own argument and the closing arguments as a whole, it is apparent that the government was responding to the defense‘s allegations that the government had “cooked” the case in order to win. See, e.g., Sayetsitty, 107 F.3d at 1409 (closing argument appropriate response to defense counsel‘s characterization that case was “web of deception“). In addition, rather than arguing that the jury should trust the government witnesses (as in United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir. 1999)), the government asked the jury to exercise its own judgment and determine the plausibility of the defense‘s explanation in light of the substantial corroboration among the various witnesses.
[16] The government concedes that its sarcastic comment “the government has nothing better to do than to pressure people to get all on the same page” could have been better phrased, but, in context, we agree these words were merely “rhetorical emphasis for the inferences the prosecutor was urging the jury to draw rather than a meaningful personal assurance that the [defendant was] guilty.” Williams, 989 F.2d at 1072. We are also mindful that we should not assume the prosecutor means a remark to have its most damaging meaning, “or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” United States v. Leon-Reyes, 177 F.3d 816, 822-23 (9th Cir. 1999) (internal quotation omitted).
Finally, even if some of the government‘s comments were improper vouching, these unobjected-to comments do not rise to the level of plain error resulting in a miscarriage of justice. There was extensive evidence in support of the child prostitution counts, including the testimony of the two victims and Doss‘s wife, which was also independently corroborated by
IV. Sentencing
[17] Under
The district court applied the enhancement to Doss and sentenced him to life in prison because of a prior child pandering conviction in Nevada.
However, these cases are not outcome-determinative here because a recent Supreme Court decision further alters the legal landscape. In Nijhawan v. Holder, the Supreme Court
The language of the provision is consistent with a circumstance-specific approach. The words “in which” (which modify “offense“) can refer to the conduct involved “in” the commission of the offense of conviction, rather than to the elements of the offense.
The sentencing enhancement at play here,
As the government argued to the district court,
[18] Nonetheless, we also recognize that Nijhawan was an immigration case, and although we believe its reasoning is equally applicable to
The mandatory life sentence enhancement pursuant to
[19] In this case Doss waived a jury determination and proceeded to a “bench trial” for sentencing. However, our review of the proceeding makes it clear that although the government sought a factfinding sentencing trial and wished to introduce evidence in that proceeding, such as birth certificates of the two victims from the Nevada conviction, the district court instead based its decision entirely on legal grounds—application of the Taylor/Shepard modified categorical approach—and did not undertake any specific factfinding (an approach that was perfectly understandable given the law at the time). Under these circumstances, especially considering the significant change in law since the sentencing, we believe the fairest approach would be to remand Counts 4, 5, and 6 for a new sentencing proceeding to determine, applying a beyond-a-reasonable-doubt standard, whether Doss‘s prior sex conviction indeed involved a minor under the federal definition.11
Doss‘s convictions are AFFIRMED, except for Count 8, which is REVERSED. Doss‘s life sentences on Counts 4, 5 and 6 are VACATED and REMANDED for further proceedings in accordance with this Opinion.
As part of these proceedings on remand, the district court is free to consider all legal or factual defenses raised by Doss to the imposition of the mandatory life sentence. United States v. Kellington, 217 F.3d 1084, 1092-95 (9th Cir. 2000). Should the court conclude that the mandatory life sentence is not required on Counts 4, 5, and 6, the court may, but is not required to, reconsider the life sentence imposed on Count 2. United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000).