Monday, August 31, 2009

U.S. v. Gallenardo, No. 07-30414 (8-28-09). The 9th affirmed a child porn conviction and sentence over challenges to the interstate jurisdiction nexus, reference to other acts, and the imposition of a mandatory life term. As to the last challenge,the sentence was imposed under 18 U.S.C. 3559(e) because the defendant had a state sex prior. He argued that his offense of conviction -- 18 U.S.C. 2251 -- had the applicable recidivist provision and should control. The 9th (Rawlison joined by Paez and Jenkins) hold that 3559 is more specific than 2251, and this the two statutes -- each establishing mandatory sentences -- can be reconciled. The 3559 focuses on priors that are felonies and where the victim was a minor; 2251 includes other offenses, and where the victim is not a minor. The 9th also affirms the use of defendant's state offense, which was for felony sexual assault, because it would have been a federal sex offense if there was an interstate nexus.


Post a Comment

<< Home