United States v. Wayne Partin

FILED
NOT FOR PUBLICATION
NOV 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-30308

Plaintiff-Appellee, D.C. No. 2:12-cr-00008-DLC-1

v.
MEMORANDUM*
WAYNE ALAN PARTIN,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding

Submitted October 5, 2016**
Seattle, Washington

Before: W. FLETCHER, FISHER and N.R. SMITH, Circuit Judges.

For the third time, Wayne Alan Partin seeks to challenge imposition of

Sentencing Guidelines enhancements to his conviction for access with intent to

view child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Partin

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
contends United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006), prevents

imposition of these enhancements. Because this issue has already been addressed

by a previous panel, the law of the case prevents us from considering the question

anew. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).

Partin’s argument that the previous panel’s decision should be afforded little

deference under United States v. Houser, 804 F.2d 565, 568 (9th Cir. 1986), is

unpersuasive. Unlike the motions panel in Houser, the previous merits panel

provided more than sufficient explanation of its decision. See United States v.

Partin, 565 F. App’x 626, 626-27 (9th Cir. 2014). That Partin chose not to seek en

banc review or file a certiorari petition is of no consequence. Nothing prevented

him from doing so. He chose to take his chances on remand. Lack of success there

does not mandate review here.

Partin does not convince us that any of the circumstances meriting

reconsideration of a previously resolved question are present. See Thomas v. Bible,

983 F.2d 152, 155 (9th Cir. 1993). We therefore decline to do so.

AFFIRMED.