FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30330
Plaintiff - Appellee, D.C. No. 4:10-cr-00015-SEH-1
v.
MEMORANDUM *
CLEMENT DAVID KING,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30031
Plaintiff - Appellee, D.C. No. 4:10-cr-00015-SEH-1
v.
CLEMENT DAVID KING,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted February 7, 2012
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and GOULD, Circuit Judges, and BEISTLINE, Chief
District Judge.**
Clement King challenges his convictions for sexual abuse of a minor and
attempted receipt of child pornography. He also challenges his sentence as
procedurally and substantively unreasonable.
The district court did not abuse its discretion in admitting the parties’
stipulation that King had previously been adjudicated a juvenile delinquent for
sexual abuse of a minor. The district court applied the factors of United States v.
LeMay, 260 F.3d 1018 (9th Cir. 2001), and properly concluded that the probative
value of the stipulation was not substantially outweighed by the prejudicial effect.
The juvenile and adult offenses were similar and close in time, and the evidence
was necessary to rebut King’s argument to the jury on each count that he had not
committed the offense. See id. at 1028–29.
The Federal Juvenile Delinquency Act provision that “records shall be
safeguarded from disclosure to unauthorized persons,” 18 U.S.C. § 5038(a), does
not apply. A statutory exception directs that “records shall be released to the
extent necessary to meet the following circumstances: (1) inquiries from another
court of law.” § 5038(a)(1). King also contends that after Roper v. Simmons, 543
**
The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
2
U.S. 551 (2005), it is inappropriate to introduce evidence of juvenile adjudications.
That case addressed the inappropriateness of imposing the death penalty on a
juvenile, however, and does not otherwise affect juvenile proceedings.
In sentencing, the district court did not err in considering King’s juvenile
adjudication under U.S.S.G. § 2G2.2(b)(5). See United States v. Garner, 490 F.3d
739, 743 (9th Cir. 2007). The district court nonetheless procedurally erred in
calculating the Guidelines range. King was charged with both offenses in a single
superseding indictment. The district court separated the two offenses for trial, but
declined to continue sentencing on count 1 until after trial on count 2. At
sentencing on count 2, the court treated King’s conviction on count 1 as a specific
offense characteristic. It therefore erred in not recognizing that the counts involved
substantially the same harm, see U.S.S.G. § 3D1.2(c), and should have been
grouped. The district court reasoned that the offense was listed as an excluded
offense under subsection (d). Such offenses, however, may nonetheless be
grouped under subsection (c). See, e.g., § 3D1.2(d) (“Exclusion of an offense from
grouping under this subsection does not necessarily preclude grouping under
another subsection.”); United States v. Tank, 200 F.3d 627, 632–33 (9th Cir. 2000).
The court imposed two consecutive sentences at the top ends of their respective
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ranges. The upper end of the single properly calculated advisory range, however,
is 103 months lower than the sentence the district court imposed.
As we hold the district court committed procedural error, we need not
consider now King’s argument that the district court’s sentence was substantively
unreasonable.
Sentence VACATED and REMANDED for resentencing.
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