United States v. Paul Michael Mooneyham, 938 F.2d 139 (9th Cir. 1991). · Go Syfert
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United States v. Paul Michael Mooneyham, 938 F.2d 139 (9th Cir. 1991). Cases Citing This Book View Copy Cite
45 citation events (1 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Ward David Coble, 99 F.3d 1147 (9th Cir. 1996)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
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At page 140 holding that an amendment requiring a reduction of the offense level for acceptance of responsibility was not clarifying and could not be applied retroactively23 citing cases1 citing court put it this way
  • United States v. Ward David Coble, 99 F.3d 1147 (9th Cir. 1996).unpublished
    Absent an ex post facto violation, the sentencing court applies the Guidelines in effect on the date the defendant is sentenced. 18 U.S.C. § 3553 (a)(4); United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 502 U.S. 969…
  • Bankr. L. Rep. P 75,971 United States of Am. v. Vernon Robert Lindholm, Jr., 24 F.3d 1078 (9th Cir. 1994).published
    United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, - U.S. -, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991).
  • Delwood C. Westfall v. United States, 17 F.3d 398 (9th Cir. 1994).published
    United States v. Fagan, 996 F.2d 1009, 1017 (9th Cir.1993); United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991).
  • United States v. Everardo Zuniga-Rosales, Francisco Contreras-Cardenas, Cross-Appellee, 8 F.3d 33 (9th Cir. 1993).unpublished
    United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991); 18 U.S.C. § 3553 (a)(4). 4 In interpreting the Guidelines, the courts are constrained to consult the Commentary that accompanies the Guidelines s…
  • United States v. Charles Esters, 7 F.3d 235 (6th Cir. 1993).unpublished
    See United States v. Caceda, 990 F.2d 707, 710 (2d Cir.1993); United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 442 (1991). 7 To the extent that Esters argues that the sentencing court erred in the applicati…
  • United States v. Melecio Aldana-Ortiz, 6 F.3d 601 (9th Cir. 1993).published 2 cites
    Substantive amendments to the Guidelines that occur between the date of sentencing and the resolution of an appeal have no retroactive effect, United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, - U.S. -, 112 S.Ct. 443…
  • United States v. Anthony Wayne Fagan, United States of Am. v. Anthony Wayne Fagan, 996 F.2d 1009 (9th Cir. 1993).published 2 cites
    “The district court is to apply the version of the Sentencing Guidelines in effect on the date of sentencing.” United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991).
  • United States v. Edison L. Retizos, 995 F.2d 234 (9th Cir. 1993).unpublished
    United States v. Mooneyham, 938 F.2d 139, 140-41 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991). 5 At the time the district court sentenced Retizos, Application Note 7 to § 2F1.1 (November 1990 edition) clearly directed that in calculating…
  • United States v. Robert Rodriguez Carrillo, United States of Am. v. Carlos Alonzo Garcia, 991 F.2d 590 (9th Cir. 1993).published
    Nor *592 mally, the Guidelines in effect at the time of sentencing are applied, see United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, — U.S.-, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991), which would mean the 1991 amendmen…
  • United States v. Gregory Leferrall Warren, 980 F.2d 1300 (9th Cir. 1992).published
    United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991).
Show 13 more citing cases
  • United States v. John Roy Robinson, 958 F.2d 268 (9th Cir. 1992).published
    United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, — U.S. —, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991).
  • United States v. Rene Diaz-Cardenas, 351 F.3d 404 (9th Cir. 2003).published
    (holding that an amendment requiring a reduction of the offense level for acceptance of responsibility was not clarifying and could not be applied retroactively)
  • United States v. Ramon Duron, III, 110 F.3d 70 (9th Cir. 1997).unpublished
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 502 U.S. 969 (1991).
  • Donald Ray Hodges v. United States, 16 F.3d 1219 (6th Cir. 1994).published
    See United States v. Mooneyham, 938 F.2d 139, 140-41 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991). 6 Accordingly, the district court's judgment is affirmed.
  • United States v. Manuel (Nmi) Garcia, 999 F.2d 545 (9th Cir. 1993).unpublished
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 443 (1992) (district court is to sentence defendant under the Guidelines in effect on the date of sentencing). 7 Accordingly, the district court did not…
  • United States v. Richard Blake Draper, 996 F.2d 982 (9th Cir. 1993).published
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991).
  • Helen Conwell v. United States, 995 F.2d 1066 (6th Cir. 1993).unpublished
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991); United States v. Heard, 810 F.Supp. 242, 244 (N.D.Ill.1993). 8 Even if it is assumed that the district court retained discretion to apply the…
  • United States v. James Robert Mincoff, 981 F.2d 1260 (9th Cir. 1992).unpublished
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.1991), cert. denied, 116 L.Ed. 461 (1991).
  • United States v. Antonio Martinez-Ortega, 972 F.2d 1345 (9th Cir. 1992).unpublished 3 cites
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991).
  • United States v. Joe D. Fernandez, 955 F.2d 48 (9th Cir. 1992).unpublished 2 cites
    See United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, 112 S.Ct. 443 (1991).
  • United States v. Braum, 825 F. Supp. 119 (S.D.W. Va 1993).published
    Id.; see also U.S. v. Mooneyham, 938 F.2d 139, 140 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991).
  • United States v. Rios-Paz, 808 F. Supp. 206 (E.D.N.Y 1992).published
    (noting that clarifying amendment states that it is “to clarify” the operation of the guideline)
  • United States v. Luis Colon, 961 F.2d 41 (2d Cir. 1992).published
    Compare United States v. Mooneyham, 938 F.2d 139, 140-41 (9th Cir.) (holding amendment 266 not retroactive), cert. denied, - U.S. -, 112 S.Ct. 443 , 116 L.Ed.2d 461 (1991) with United States v. Park, 951 F.2d 634, 636 (5th Cir.1992) (holdi…
At page 141 his sentence, section 1B1.10 does not apply. To accept this argument, we would have to hold that when a sentence is appealed, the Guidelines that apply are…1 citing caseopening of page *141 (no citing court says what it cites this page for)
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Paul Michael MOONEYHAM, Defendant-Appellant
89-50573.
Docket on CourtListener (RECAP)
Court of Appeals for the Ninth Circuit.
Jul 3, 1991.
Published opinion
938 F.2d 139
91 Cal. Daily Op. Serv. 5248
1991 U.S. App. LEXIS 29473
1991 WL 116630
Neison M. Marks, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant., Kendra S. McNally, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Koelsch, Choy, Beezer.
Cited by 31 opinions  |  Published
BEEZER, Circuit Judge:

On July 17, 1989, Paul Michael Mooney-ham pleaded guilty to two counts of unarmed bank robbery. The presentence report concluded that Mooneyham was entitled to a two-level reduction in his Sentencing Guidelines offense level for acceptance of responsibility and determined the level to be 19. However, because Mooneyham qualified as a career offender, Guidelines section 4B1.1 required that his offense level be 32 and that his criminal history category be YI. See U.S.S.G. § 4B1.1 (1990).[*140] These factors placed the sentencing range at 210-262 months.

On October 25, 1989, the district court sentenced Mooneyham to two concurrent terms of 236 months each, followed by five years of supervised release. The court rejected Mooneyham’s argument that the offense level of 32 set by section 4B1.1 should have been reduced by two points to reflect his acceptance of responsibility. Mooneyham appeals his sentence, arguing that a subsequent amendment to section 4B1.1 requires that his sentence take into account his acceptance of responsibility. We affirm.

I

Construction of the Sentencing Guidelines is a question of law that we review de novo. United States v. Summers, 895 F.2d 615, 617 (9th Cir.), cert. denied, — U.S. -, 111 S.Ct. 389, 112 L.Ed.2d 399 (1990).

The district court is to apply the version of the Sentencing Guidelines in effect on the date of sentencing. United States v. Turner, 898 F.2d 705, 709 n. 1 (9th Cir.1990). At the time Mooneyham was sentenced, we had clearly held that a career offender whose sentence was controlled by Guideline 4B1.1 could not obtain the two-point reduction in offense level offered by Guideline 3E1.1. [1] Id. at 617-18. Mooneyham argues, however, that an amendment to section 4B1.1 applies retroactively to require a two-point reduction even though his offense level is dictated by the career offender provisions.

Effective November 1, 1989, section 4B1.1 was amended to state: “If an adjustment from § 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by 2 levels.” U.S.S.G. Appendix C, Amendment 266 (1990). Three circuits have held that Amendment 266 does not apply retroactively. See United States v. Alvarez, 914 F.2d 915, 917 n. 1 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v. Havener, 905 F.2d 3, 4-8 (1st Cir.1990); United States v. Williams, 905 F.2d 217, 218 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 687, 112 L.Ed.2d 678 (1991); see also United States v. Nottingham, 898 F.2d 390, 391-92 (3d Cir.1990). Two circuits have suggested in dicta that Amendment 266 is only a “clarification” of section 4B1.1. See United States v. Delvecchio, 920 F.2d 810, 813 n. 4 (11th Cir.1991) (citing United States v. Maddalena, 893 F.2d 815, 818 (6th Cir.1989)). We now join the former category and hold that Amendment 266 is not retroactive.

The purpose of Amendment 266 is “to authorize the application of § 3E1.1” to the criminal offense levels set for career offenders. U.S.S.G. Appendix C, Amendment 266. The word “authorize” suggests that prior to the amendment a sentencing court did not have the power to apply section 3E1.1 to the level set by section 4B1.1. See Havener, 905 F.2d at 5. Furthermore, the Guidelines Commission has been explicit when it has intended an amendment to clarify a section. See, e.g., U.S.S.G. Appendix C, Amendment 267 (1990) (Amendment 267 was intended “to clarify the operation of the guideline”).

Amendment 266 was not included on the list of amendments that are to be given retroactive effect. See U.S.S.G. § 1B1.10(d). Mooneyham argues that the list in section 1B1.10 deals only with the retroactive effect of amendments that are the basis of a prisoner’s motion for modification of a previously imposed sentence pursuant to 18 U.S.C. § 3582(c)(2). He contends that because he is appealing the district court’s refusal to reduce his offense level, rather than seeking a modification of[*141] his sentence, section 1B1.10 does not apply. To accept this argument, we would have to hold that when a sentence is appealed, the Guidelines that apply are those in effect at the time of the appeal, rather than those in effect at the time of sentencing. To do so would not only violate the law of this circuit, see Turner, 898 F.2d at 709 n. 1, it would create an incentive for defendants to delay appeals or to take unnecessary appeals in order to preserve the possibility that a future amendment not listed in section 1B1.10 would nevertheless apply to them. See Havener, 905 F.2d at 7-8.

Amendment 266 is not retroactive. The sentence imposed by the district court is AFFIRMED.

1

. Guideline 3El.l(a) provides: "If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.” U.S.S.G. § 3El.l(a). In Summers, we determined that this provision did not apply to career offenders because the Guidelines require the sentencing judge first to determine the offense level, at which point section 3E1.1 may apply, and then to determine the criminal history category. See U.S.S.G. § 1B1.1(c), (f). Because it is at the criminal history stage that section 4B1.1 establishes a new minimum criminal offense level for a career offender, we determined that section 3E1.1(a) does not apply to career offenders. Summers, 895 F.2d at 617.