Petition for Writ of Certiorari — Morse v. United States (No. 07-1538)

Supreme Court, U.S.

OM 071538 APR18 2008

No. ov.) OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

LUCILLE MAE MORSE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

BRAD L. ARNDORFER JAY F. LANSING

ARNDORFER LAW FIRM, P.C. Attorney of Record

1921 lst Avenue N. MOSES AND LANSING, P.C.

Billings, MT 59101 P.O. Box 2533

(406) 252-3911 Billings, MT 59103

Co-Counsel for Petitioner 406) 248-7702

April 18, 2008

SL CN TTR RTT CM RK a chee NMR AR A ROT EIS I IIR eae

WALSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether a Defendant’s sentence may be enhanced

if given a deferment on sentencing on a previous

charge?

TABLE OF CONTENTS

QUESTION PRESENTED.....0000.. eee eeeeeeeee i

TABLE OF AUTHORITIES. ..............0cccssessssssseoes IV

Pe RMT MEITY Nenaisbrencisesicicerorsexisntnensvasvereences 1

FIT Sainheriscclekicisevh thctemnasnasehtonwexsteonsée 1

STATUTORY PROVISIONS INVOLVED.......... 2

STATEMENT OF FACTS .......:..cccsesvcssvssesseceseees 2

REASONS FOR GRANTING THE PETITION.. 2

E:. REE eT INE oiidscrseynssenensoisceninrsensnnipse 2

Ee. FERN TE se Sid ecerneaxinressssicartessavahisaninees 3

A. Several Circuits Hold a Prior

Deferred Conviction is not a “Final”

Conviction Under 21 U.S.C. §841

CIEE EN iiss ccccevdaieinGuayvicendceeiiiatcasntees 3

B. Circuit Courts That Hold a Deferred

Sentence is a “Final” Conviction

Under 21 U.S.C. §841 (b)(1)(A) Base

Their Reasoning on Case Law That

Has Been Superceded by Statute ....... 7

C. Under Montana Law, Morse’s

Deferred Sentence Can be Dismissed

at Any Time, and is thus Not a Final

Conviction ........ SIO oy ROC NES Ue 9

D. Because the Meaning of “Conviction”

is Ambiguous Under 21 U.S.C. §841

(b)(1){A), the Meaning Must Be Inter-

preted in Favor of Lenity Toward the

ERC ECARD RE erie aoe ae 10

tS FP :_5 REEMA Reeee ene Ree eer Oe Maps 12

a IE xihedin tec vccsiicniate ee ere NS la

iv

TABLE OF AUTHORITIES

STATE CASES Page

Davis v. State, 625 N.W.2d 855, 858-59

a INI sci res Misieagorectinimbisao beloicasdninoeunioese 4,5

State v. Todd, 262 Mont. 108, 863 P.2d 423

a alae: 5

State v. Tomaskie, 2007 MT 103, 337

Mont. 150, 167 PS GOA .2......cic..cescossiss.-se 4,9

FEDERAL CASES

Dicrerson v. Banner Institute, Inc., 460

Be sce ieiien ieciscs nckaticdsinsbeiecyse 2, 1, 8,9

McBoyle v. United States, 283 U.S. 25, 27

ERNST SE csr nessa RE te ie TE Reg eM 12

U.S. v Petros, 747 F. Supp. 368 (E.D. Mich.

PERSIE iene Rae ee OO HRS CLA eteraet Sa PANE 7

U.S. v. Campbell, 980 F.2d 245 (4th Cir.

I icsisis toca wicravennandbe nei cats atiaeese cen ss 3, 3,7

U.S. v. Morales, 854 F.2d 65 (5th Cir

RISE nee aa ie eased eS A 7

U.S. v. Norbury, 492 F.3d 1012 (9th Cir

- —___, SRRERERIN EIR me Acute Re trem CRS mt felon ORE 1,8

U.S. v. Short, 947 F.2d 1445 (10th Cir.

1991), cert. den. 118 L. Ed. 2d 397........... 7

United States v. Alvarado, 458 F. Supp. 2d

es IE ceric esecivecesnncgncicesnion 3, 6,11

United States v. Bass, 404 U.S. 336, 348

i, SESLSUNCRS SE a Meapeesa iter ate tare roe er tem eee 12

United States v. Capano, 786 F.2d 122,

Re Es Bains cciniovensitnducchintasoaueoacse 12

United States v. Graham, 315 F.3d 777

yo RMR enen wersaate cis Saree wee 3,8

United States v. Hazelton, 279 F. Supp. 2d

ts ee WR IE vie wscdseceuctdeatexceanes 6

Vv

TABLE OF AUTHORITIES

Page

United States v. McAllister, 29 F.3d 1180,

1984-66 (7th Cir. 1904)... .0.nc...cccscccs00: 2,8

United States v. Miller, 434 F.3d 820 (6th

i craton 5

' United States v. Parker, €94 F.2d 1327,

DN ee FT ainssesvtieicsnereceeneesecsons 4

United States v. Samson, 533 F.2d 721,

py gt RR... 2 SER neeeenesminr Saaennen 4

STATUTES

FUSE 2 2 ee Sy) | 5 eens 4,5,9

§ 46-18-204 M.C.A. (2005)............0.......20002000 10

pS | Ae anon 7,8

is nmareaniacica deciles 3

Ie shrine iiidiivcsnicsinincseemnsscchnitiangaaiin 6, 10

21 U.S.C. 964d IK A).............2.0000050. 2.5. 7,3, 30

Mont. Code Ann. § 46-1-202..................0...... 4,5.9

OTHER AUTHORITIES

Oklahoma Deferred Judgment Procedure,

yp EE R.t RB: ye GL | | Aenea 4

IN THE |

Supreme Court of the United States

No. 07-___

LUCILLE MAE MORSE,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

Before a three judge panel of the Ninth Circuit an

opinion was given that a twenty-five year old de-

ferred sentence in Montana can be used to enhance

mandatory minimum punishments relying upon

U.S. v. Norbury, 492 F.3d 1012 (9th Cir. 2007). The

twenty year sentence of the defendant given by the

District Court because of the enhancement was up-

held. A copy is attached as Appendix A.

JURISDICTION

The Ninth Circuit filed its decision on January 18,

2008. This Court has jurisdiction under 28 U.S.C.

2

1254(1) to review a circuit court’s decision on a Writ

of Certiorari.

STATUTORY PROVISIONS INVOLVED

21 U.S.C. § 841 (b)(1)(A).

STATEMENT OF FACTS

Morse was charged by indictment filed on Septem-

ber 26, 2005. She was tried by a jury in August of

2006. She was acquitted on counts I and II and con-

victed on the substantive counts I{I to X. She was

sentenced on November 29, 2006 to 240 months (20

years). Her sentence was enhanced to a mandatory

minimum 20 years because of a 25 year old prior

deferred charge for which she was never sentenced.

REASONS FOR GRANTING THE PETITION

I. INTRODUCTION

Whether a deferred sentence is a “final” conviction

for purposes of enhancing a sentence under 21 U.S.C.

§841 (b)(1)(A) is a question that has been answered

differently among the several Circuit Courts. Some

Circuits have found a deferred sentence to be a con-

viction for purposes of federal sentencing. See United

States v. Costa, No. 07-10092 2008 U.S. App. LEXIS

at *1138 (9th Cir. January 17, 2008); United States v.

Campbell, 980 F.2d 245, 249 (4th Cir. 1992); United

States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir.

1997) (involving deferred adjudication); United States

v. Mejias, 47 F.3d 401, 402 (11th Cir. 1995) (involving

nolo contendere plea and withheld adjudication);

United States v. Gomez, 24 F.3d 924 (7th Cir. 1994)

at 927-28 (involving expunged and dismissed convic-

tion); United States v. Meraz, 998 F.2d 182, 184 (3d

3

Cir. 1993), (involving conviction’s dismissal with preju-

dice under deferral statute); United States v. Campbell,

980 F.2d 245, 249 (4th Cir. 1992), (involving proba-

tion sentence under state deferral statute). Other

Circuits have held that a previous deferred sentence

is not a prior conviction and therefore, enhanced sen-

tencing for a later conviction is not possible. See

United States v. Stober, 604 F.2d 1274 (10th Cir.

1979); United States v. Alvarado, 458 F.Supp.2d 1266

at 1268 (10th Cir. 2006); United States v. Stallings,

301 F.3d 919, 920-21 (8th Cir. 2002). Often the deci-

sions by the courts turn on whether or not the court

looked to state or federal law in deciding the defini-

tion of “conviction”. Compare United States v. Stallings,

301 F.3d 919, 922 (8th Cir. 2002), United States v.

McAllister, 29 F.3d 1180, 1185 (7th Cir. 1994); United

States v. Gomez, 24 F.3d 924, 930 (7th Cir.1994);

United States v. Cisneros, 112 F.3d 1272, 1280-82

(5th Cir. 1997); United States v. Campbell, 980 F.2d

245 (4th Cir. 1992). Other courts seek the legislative

intent when discerning the meaning of “conviction”

21 U.S.C. §841 (b)(1)(A). See United States v. Gra-

ham, 315 F.3d 777, 783 (7th Cir. 2003); United States

v. Franklin, 250 F.3d 653, 665 (8th Cir. 2001); United

States v. Mejias, 47 F.3d 401 (11th Cir. 1995) (per

curiam).

Il. ARGUMENT

A. Several Circuits Hold a Prior Deferred

Conviction is not a “Final” Conviction

Under 21 U.S.C. § 841 (b)(1)(A).

The Tenth Circuit court has treated deferred judg-

ment as no judgment at all. United States v. Stober,

604 F.2d 1274 (10th Cir. 1979). In Stober, the defen-

dant was indicted for a violation of 18 U.S.C. § 922(h)

4

and § 924(a) for receiving firearms shipped in inter-

state commerce after hie had been convicted of a felony.

Id. at 1275. The defendant had entered a plea of guilt

under the Oklahoma Deferred Judgment Procedure,

22 O.S.Supp.1977 § 991c in the earlier charge. Id.

The issue considered on appeal was whether the de-

fendant had been previously convicted. Jd. The Okla-

homa Court of Criminal Appeals held that a “convic-

tion” does not arise under the Deferred Judgment

Procedure. Jd. at 1276. Thus, if a person was not

“convicted” by the Oklahoma courts, the federal court

cannot hold that he was convicted in the Oklahoma

courts for the purpose of enhanced punishment under

federal law.

The Tenth Circuit court has held that the state de-

termination on whether the proceedings in its court

constitute a conviction was to be followed by the fed-

eral courts. United States v. Stober, 604 F.2d 1274,

1276 (10th Cir. 1979); United States v. Parker, 604

F.2d 1327, 1339 (10th Cir. 1979). The First Circuit

has observed that it did not believe “Congress in-

tended the meaning of convicted to depend upon the

local law’s singularities, if any.” United States v.

Samson, 533 F.2d 721, 723 (1st Cir. 1976).

In State v. Tomaskie, 2007 MT 103, 337 Mont. 130,

157 P.3d 691 the defendant had received a deferred

sentence for a first conviction of criminal possession of

dangerous drugs. The court held that it did not con-

stitute a conviction and final judgment, as the terms

were defined in Mont. Code Ann. § 46-1-202(7) and

(11). “As to the Havre City Court charge, the imposi-

tion of a deferred sentence does not constitute a con-

viction and final judgment. Davis v. State, 2004 MT

112, 9 16, 321 Mont. 118, J] 16, 88 P.3d 1285, 7 16.”

Tomaskie at | 13. The Statutory definition of “judg-

5

ment” states that if a defendant is adjudicated guilty,

judgment includes the sentence pronounced by the

court. § 46-1-202 M.C.A. (2005). Under the deferred

sentencing statutes a person is not sentenced unless

the deferred sentence is revoked. Thus, a prerequi-

site for an appeal from justice court to district court

ic the imposition of sentence, and so a final judgment.

State v. Todd, 262 Mont. 108, 111, 863 P.2d 423,

(Mont. 1993). :

Under North Dakota law, a conviction was consid-

ered as not “final” because the sentence was not final.

See Davis v. State, 625 N.W.2d 855, 858-59 (N.D. 2001)

In this case, the court, responding to a defendant’s

double jeopardy claim after re-sentencing for a proba-

tion revocation, held that “a sentence which includes

probation is not final.” Davis v. State, 2001 ND 85,

P11 (N.D. 2001).

In United States v. Miller, 434 F.3d 820 (6th Cir.

2006), the defendant pled guilty to multiple offenses,

including drug and firearms convictions. The defen-

dant argued that the district court erred by enhanc-

ing his sentence pursuant to 21 U.S.C.S. § 841 (b)(1)

based on a prior conviction that, defendant argued,

had not become final. That Court held the question

of finality of conviction is to be decided by federal and

not state law. The court observed that under federal

law, defendant’s conviction becomes final when the

time for an appeal from the judgment of conviction

had expired. The court also pointed out that the

Georgia penal code contains a first-offender sentenc-

ing provision that permits a two-year probationary

period in lieu of incarceration. Successful completion

of probation entitles a first-offender to be discharged

without court adjudication of guilt and, as a result,

6

the defendant shall not be considered to have a crimi-

nal conviction.

In United States v. Alvarado, 458 F. Supp. 2d 1266

(D.N.M. 2006), the defendant had previously pled

guilty to fourth degree felony possession of a con-

trolled substance and misdemeanor possession of drugs

in the District Court (New Mexico), and the court had

granted him a conditional discharge. Later, the de-

fendant was arrested and charged in state court with

felony possession with intent to distribute a con-

trolled substance, and he pled guilty to that offense.

Id. at 1267. The court considered whether pre-

judgment probation amounted to conviction and held

that it was not a final conviction. Jd. at 1270. The

court observed that under Yenth Circuit precedent,

the deferred sentence in « criminal case is not a

criminal conviction for purposes of federal sentenc-

ing. Id. at 1268. In cases that consider an earlier

deferred sentence, there can be no valid prior felony

conviction because there has been no determination

of guilt. Id. see also United States v. Hazelton, 279

F. Supp. 2d 710, 714 (E.D. Va. 2003).

Federal sentencing may depend on state treatment

of crime, where the defendant is sentenced under a

state deferral statute, converting a felony to a misde-

meanor if the defendant successfully completes pro-

bation. The state’s classification of the offense, al-

though subject to change, will determine the classi-

fication for federal sentencing. If, for example, the

state felony conviction has not yet been converted to

a misdemeanor under state law because the defen-

dant has been convicted of a federal crime before

completing the state’s probationary period, federal

courts have deemed the state sentence a final prior

felony conviction under Section 841 (b) even though

7

the sentence was to probation. See U.S. v. Campbell,

980 F.2d 245 (4th Cir. 1992) (Virginia law); U.S. v.

Short, 947 F.2d 1445 (10th Cir. 1991), cert. den. 118

L. Ed. 2d 397, (Utah law); U.S. v. Morales, 854 F.2d

65 (5th Cir. 1988) (Texas law); U.S. uv Petros, 747

F. Supp. 368 (E.D. Mich. 1990)(Michigan law).

B. Circuit Courts That Hold a Deferred

Sentence is a “Final” Conviction Under

21 U.S.C. §841 (b)(1)(A) Base Their Rea-

soning on Case Law That Has Been

Superceded by Statute.

The Government relies on the reasoning in a series

of gun control cases to argue that Morse’s prior de-

ferred conviction is a “final” conviction under 21 U.S.C.

§ 841 (b)(1)(A), thus permitting enhanced sentencing

under the statute. These gun control cases base their

holdings on reasoning which Congress superceded by

statute. See 18 U.S.C. § 921(a)(20).

In the case of Dickerson v. Banner Institute, Inc.,

this Court held: “for purposes of the federal gun control

laws, we equate a plea of guilty and its notation by

the state court, followed by a sentence of probation,

with being “convicted” within the language of [18

U.S.C.S] §§ 922(g) and (h).” Dickerson v. Banner In-

stitute, Inc., 460 U.S. 103 (1983). This Court stated

that Iowa law, which may have nullified the defen-

dant’s gun conviction, did not control the case; rather,

federal law controlled. Jd. at 114 n.9. This Court

examined the gun control] statute to conclude that

“expunction of a state conviction was not intended by

Congress automatically to remove the federal fire-

arms disability.” Jd. at 115. Based on this inter-

pretation of the intent of Congress, the Dickerson line

of reasoning took off.

8

After the Dickerson decision, Congress amended

the definition of “conviction” under the gun control

statutes such that the definition “shall be determined

in accordance with the law of the jurisdiction in which

the prdceedings were held.” 18 U.S.C. § 921(a)(20).

However, drug possession cases which hold that a

prior deferred conviction is “final” under 21 U.S.C.

§ 841 (b)(1)(A) still base their reasoning on Dickerson,

contrary to the intent of Congress. See United States

vu. Norbury, 492 F.3d 1012 (9th Cir. 2007) (stating

that the Dickerson rationale still applies to drug pos-

session cases but not to gun control cases); United

States v. McAllister, 29 F.3d 1180, 1184-85 (7th Cir.

1994) (analyzing Dickerson to conclude that proba-

tion was a conviction under § 841 (b)(1)(B)); United

States v. Campbell, 980 F.2d 245, 251 (4th Cir. 1992)

(finding the reasoning of Dickerson “persuasive”).

In United States v. Graham, 315 F.3d 777 (7th Cir.

2003), the court applied the Dickerson reasoning to

Section 841 (b)(1)(B), stating “the Supreme Court

made clear in Dickerson v. New Banner Institute, Inc.

that expunction does not alter or remove the exis-

tence of a prior conviction.” Jd. at 783 (internal cita-

tions omitted). In Norbury, the court continued with

the Dickerson reasoning: “(t]he Supreme Court ad-

dresses federal gun control statutes in Dickerson, but

the Court’s rationale for applying federal law to the

meaning of “conviction” applies equally to federal drug

statutes.” Norbury, 492 F.3d at 1014.

Even though Congress disapproved of applying the

gun-control case of Dickerson to gun control statutes,

Circuit Courts are still applying the old logic of

Dickerson to drug possession cases under Section 841

(b)(1)(A). In the instant matter, both the District Court

and the Court of Appeals for the Ninth Circuit applied

9

the Government’s reasoning, based on Dickerson,

without further analysis. The Seventh Circuit Court

in Graham has expressed its inability to overrule

Dickerson, despite disapproval from Congress, stating

“[w]e cannot simply overturn the United States Su-

preme Court”. Graham, 315 F.3d at 783. This Court

should review the issue of whether Dickerson reason-

ing should be applied to drug possession cases, when

it is no longer applied to gun control cases such as

Dickerson itself, especially as the Circuit Courts differ

in their analyses.

C. Under Montana Law, Morse’s Deferred

Sentence Can be Dismissed at Any

Time, and is thus Not a Final Convic-

tion.

Under the Montana Code, to constitute a ‘convic-

tion’, a sentence as defined in § 46-1-202(25) must be

imposed. Mont. Code Ann. § 46-1-202(7); § 46-1-

202(25). Section 46-1-202(25 states: “Sentence” means

the judicial disposition of a criminal proceeding upon

a plea of guilty or nolo contendere or upon a verdict

or finding of guilty.” In order that there be a convic-

tion; a sentence must be imposed. State v. Tomaskie,

2007 MT 103, 337 Mont. 130, 157 P.3d 691. Further,

Morse’s sentence can be dismissed and made con-

fidential criminal information at any time under the

Montana Code. The Montana statute on deferred im-

position of sentence reads:

Whenever the court has deferred the imposition

of sentence and after termination of the time

period during which imposition of sentence has

been deferred or upon termination of the time

remaining on a deferred sentence under 46-18-

208, upon motion of the court, the defendant, or

10

the defendant’s attorney, the court may allow the

defendant to withdraw a plea of guilty or nolo

contendere or may strike the verdict of guilty

from the record and order that the charge or

charges against the defendant be dismissed. A

copy of the order of dismissal must he sent to the

prosecutor and the department of justice, accom-

panied by a form prepared by the department of

justice and containing identifying information about

the defendant. After the charge is dismissed, al]

records and data relating to the charge are con-

fidential criminal justice information, as defined

in 44-5-103, and public access to the information

may ke obtained only by district court order upon

good cause shown. § 46-18-204 M.C.A. (2005).

As per the Code, Morse could have her conviction

made confidential criminal information at anytime by

invoking the provisions of the statute. Therefore, the

conviction cannot be said to be “final.” Because the

Dickerson line of reasoning is outdated and has been

overruled by statute, this Court should hold that the

reasoning of cases like Tomaskie and Stober should

apply to Morse.

D. Because the Meaning of “Conviction”

is Ambiguous Under 21 U.S.C. § 841

(b)(1)(A), the Meaning Must Be Inter-

preted in Favor of Lenity Toward the

Defendant.

There is no definition of “conviction” under 21

U.S.C. § 841. The district court in New Mexico noted

the various interpretations of how federal courts

assess the impact of state law:

One panel of the Eighth Circuit has relied on state

law to determine the sentencing impact of a prior

11

state proceeding and state decisions defining the

term “conviction.” United States v. Stallings, 301

F.3d at 921-22. Others have considered state law

but on the facts found it consistent with the fed-

eral standard. United States v. McAllister, 29

F.3d 1180, 1185 (7th Cir. 1994); United States v.

Gomez, 24 F.3d 924, 930 (7th Cir. 1994); United

States v. Cisneros, 112 F.3d 1272, 1280-82 (5th Cir.

1997); United States v. Campbell, 980 F.2d 245

(4th Cir. 1992). Still other courts hold since § 841

makes no reference to state law the Court is free

to create a federal definition of conviction which

is directly contrary to state law. United States v.

Graham, 315 F.3d 777, 783 (7th Cir. 2003); United

States v. Franklin, 250 F.3d 653, 665 (8th Cir.

2001); United States v. Mejias, 47 F.3d 401 (11th

Cir. 1995) (per curiam).

Alvarado (supra) at p.1269.

To interpret the Montana statute in a fashion con-

trary to established Montana statutory and case law

raises serious due process questions when the statute

does not define a “prior conviction” that will, result in

lengthy or even life imprisonment.

“Vague sentencing provisions may pose constitu-

tional questions if they do not state with suffi-

cient clarity the consequences of violating a given

criminal statute.” Uzited States v. Batchelder, 442

U.S. 114, 123, 99 S. Ct. 2198, 60 L. Ed. 2d 755

(1979); United States v. Gallagher, 99 F.3d 329,

334 (9th Cir. 1996) (quoting Batchelder). In such

a context, ambiguities as to the applicable pen-

alty must be resolved in favor of lenity. Batchelder,

442 US. at 123.

Alvarado, at 1270.

12

The rule of lenity is rooted in “the instinctive dis-

taste against men languishing in prison unless the law-

maker has clearly said they should“, United States v.

Bass, 404 U.S. 336, 348 (1971) (quoting H. Friendly,

Benchmarks 209 (1967)). Another purpose of the rule

is to assure that criminal statutes provide fair warn-

ing of conduct that is illegal and its consequences.

McBoyle v. United States, 283 U.S. 25, 27 (1931)

(Holmes, J); United States v. Capano, 786 F.2d 122,

128 (3d Cir. 1986). Defendant Morse had no reason to

believe that her prior deferred conviction was a final

conviction. Defendant Morse’s deferred sentence can

be dismissed at any time under the Montana Code.

She was in fact never sentenced. The principle of lenity

counsels against interpreting the Act to give the prose-

cution the benefit of unsettled law.

CONCLUSION

This court has an opportunity to correct a decision

made before Congress changed the law, but is still

being erroneously relied upon by the Circuit Courts of

Appeal. Dickerson v. Banner Institute, Inc., 460 U.S.

103 (1983). The circuits are split and the reasoning

varies in using prior deferred sentencing or adjudica-

tions for enhancement. The issue needs some finality.

Respectfully submitted,

BRAD L. ARNDORFER JAY F. LANSING

ARNDORFER LAW FIRM, P.C. Attorney of Record

1921 Ist Avenue N. MOSES AND LANSING, P.C.

Billings, MT 59101 P.O. Box 2533

(406) 252-3911 Billings, MT 59103

Co-Counsel fc. Petitioner (406) 248-7702

April 18, 2008

APPENDIX

la

APPENDIX

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed JAN 18 2008]

No. 06-30636

D.C. No. CR-05-00109-JDS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

a

LUCILLE MAE MORSE,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Montana

Jack D. Shanstrom, District Judge, Presiding

Argued and Submitted January 7, 2008

Seattle, Washington

MEMORANDUM *

Before: KLEINFELD, TASHIMA, and TALLMAN,

Circuit Judges.

In this appeal, Lucy Morse challenges the sen-

tencing enhancement based on a prior conviction,

* This disposition is not appropriate for publication and is not

precedent except as provided by 9th Cir. R. 36-3.

2a

the warrant to search her home, and her underlying

jury conviction.

The district court could properly enhance Morse’s

sentence as it did under 21 U.S.C. § 841(b). Her

deferred sentence for fraudulently obtaining danger-

ous drugs did not affect the “conviction’s under-

lying lawfulness.”’ Moreover, a deferred sentence

does not amount “to a determination that the crime

never occurred or that [she] was in fact innocent.””

Morse’s sentence did not violate the Eighth Amend-

ment’s prohibition against cruel and unusual punish-

ment because her sentence enhancement was not

“grossly disproportionate” to her crime.’

The district court followed the proper procedures

outlined in 21 U.S.C. § 851(b) for enhancing Morse's

sentence. The district court gave Morse “the opportu-

nity to deny the prior conviction,” and “[t]hat is all

[this] statute requires.”* Also, the prior conviction

used to enhance Morse's sentence was over twenty-

five years old, well past the five-year period for

challenging prior convictions under § 851(e).

The warrant to search Morse’s home was supported

by probable cause. Under the totality of the circum-

stances, information from two controlled drug buys

made by a reliable and accurate confidential in-

formant, and claims from two individuals that Lucy

‘United States v. Norbury, 492 F.3d 1012, 1015 (9th Cir.

2007).

"Id.

* See Ewing v. California, 538 U.S. 11, 23 (2003).

‘See United States v. Harris, 592 F.2d 1058, 1061 (9th Cir.

1979).

3a

sold them drugs, created a sufficient basis for prob-

able cause.”

Morse did not make a substantial preliminary

showing that the affidavit supporting the warrant to

search her car deliberately or recklessly included

false statements or omitted material statements to

entitle her to a Franks hearing.*° Morse did not show

that police lied about the methamphetamine field

test, and she did not show that the K-9 sniff test was

affected by the presence of her own dogs.

Morse’s conviction for Count VI, which was based

on an aiding and abetting theory, was supported by

sufficient evidence. Mark Butler’s testimony provided

enough information for a rational trier of fact to find

the essential elements of aiding and abetting pos-

session with intent to distribute methamphetamine

beyond a reasonable doubt.’

The variance between the date of the indictment

and the date the crime occurred is “not of a character

which could have misled the defendant at trial,

and there is no danger of double jeopardy.” There-

fore, the variance between indictment and proof is

immaterial.’

AFFIRMED.

* See United States v. Chavez-Miranda, 306 F.3d 973, 978

(9th Cir. 2002).

° See United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004).

" See United States v. Perlaza, 439 F.3d 1149, 1173 (9th Cir.

2007).

* United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir.

1997) (internal quotations and citations omitted).

"Id.