FILED
NOT FOR PUBLICATION FEB 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK EUGENE MAY, No. 08-17250
Petitioner - Appellant, D.C. No. 1:07-cv-00011-FMTG
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the District Court of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Submitted February 7, 2011**
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
On August 3, 1993 Frank Eugene May was convicted of three offenses
relating to his receipt in Guam of a small package of cocaine sent from California.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We vacate two of the convictions and remand for re-sentencing on the remaining
one.
The parties are in agreement as to the facts and law, so we do not restate
them.
1. The parties agree that May is actually innocent of Count I (violation of 21
U.S.C. § 952) pursuant to United States v. Cabbacang, 332 F.3d 622 (9th Cir.
2003) (en banc). The District Court refused to vacate Count I, believing that
because Cabbacang “is a Ninth Circuit decision[, it] lack[s] the same import of a
Supreme Court ruling with respect to retroactive application.” But there is no
difference for purposes of collateral review between Supreme Court rulings and
court of appeals rulings on the substantive reach of criminal statutes. Cabaccang
“alter[ed] the range of conduct . . . that the law punishes,” Schriro v. Summerlin,
542 U.S. 348, 353 (2004), and so announced a new substantive rule of law that a
court must apply on collateral review. See id. at 351 (“New substantive rules
generally apply retroactively.” (emphasis removed)). Under Cabbacang, May is
actually innocent of Count I, so that count must be vacated.
2. The parties also agree that May is actually innocent of Count II (violation
of 21 U.S.C. § 843(b)) pursuant to Cabaccang and the Supreme Court’s decision in
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Abuelhawa v. United States, 129 S. Ct. 2102 (2009). That count should be, and is,
vacated.
3. The parties agree that if Counts I and II are vacated, May should be
resentenced on Count III (violation of 18 U.S.C. § 922(g)). Once Counts I and II
are vacated, May’s conviction pursuant to Count III would not be “in connection
with either a crime of violence . . . or a controlled substance offence,” U.S.S.G. §
4B1.4(b)(3)(A), so the offense level as to that count would be affected. See
U.S.S.G. § 4B1.4(b)(3)(B). For the same reasons, May’s criminal history should
be Category IV. See U.S.S.G. § 4B1.4(c). May’s sentence pursuant to Count III is
therefore vacated and the District Court is instructed to resentence May on that
count.
Counts I and II are VACATED; the sentence on Count III is
VACATED and the case is REMANDED.
The mandate shall issue forthwith.
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