USA v. Joseph Lira

Filing

FILED OPINION (A. WALLACE TASHIMA, MILAN D. SMITH, JR. and MORGAN B. CHRISTEN) VACATED; REMANDED. Judge: MBC Authoring. FILED AND ENTERED JUDGMENT. [8727631]

Case: 11-30324

08/02/2013

ID: 8727631

DktEntry: 43-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-30324

v.

D.C. No.
1:10-cr-00135-RFC-1

JOSEPH DEAN LIRA ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued October 10, 2012
Submitted June 27, 2013
Seattle, Washington
Filed August 2, 2013
Before: A. Wallace Tashima, Milan D. Smith, Jr.,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen

Page: 1 of 5

Case: 11-30324

2

08/02/2013

ID: 8727631

DktEntry: 43-1

UNITED STATES V . LIRA
SUMMARY*

Criminal Law
Vacating and remanding for resentencing, the panel held
that the defendant’s sentence on a conviction for use or
carrying and possession of firearms in furtherance of a drug
trafficking offense in violation of 18 U.S.C. § 924(c) does not
comport with the Supreme Court’s post-sentencing decision
in Alleyne v. United States, 133 S. Ct. 2151 (2013), because
the increased mandatory minimum was based on a fact found
by the district court by a preponderance of the evidence rather
than submitted to a jury and established beyond a reasonable
doubt.

COUNSEL
Brian P. Fay (argued), Angel, Coil & Bartlett, Bozeman,
Montana, for Defendant-Appellant.
Michael W. Cotter, United States Attorney; Leif M. Johnson
(argued), Assistant United States Attorney, Billings,
Montana, for Plaintiff-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 5

Case: 11-30324

08/02/2013

ID: 8727631

UNITED STATES V . LIRA

DktEntry: 43-1

Page: 3 of 5

3

OPINION
CHRISTEN, Circuit Judge:
Joseph Dean Lira appeals the 120-month sentence
imposed following his jury-trial conviction for use or
carrying and possession of firearms in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c). We
have jurisdiction under 28 U.S.C. § 1291. Due to an
intervening change in the law, we vacate the entire sentence
imposed by the district court, and remand for re-sentencing.
Lira was charged with five counts related to drug
distribution and firearm possession. Count I charged
possession with intent to distribute methamphetamine.
Counts II and III charged distribution of methamphetamine.
Count IV charged that Lira knowingly and unlawfully used
and/or carried and possessed firearms in furtherance of the
drug trafficking crimes set forth in Counts I and II. Count V
charged Lira with illegal possession of a firearm affecting
interstate or foreign commerce. The jury convicted Lira on
Counts I–IV and acquitted him of the charge in Count V.
The district court sentenced Lira to 262 months
imprisonment on each of Counts I–III, to be served
concurrently. The mandatory minimum sentence for a
conviction under Count IV is five years, but under 18 U.S.C.
§ 924(c)(1)(A)(iii) the mandatory minimum increases to ten
years if a firearm was discharged. Here, the district court
found by a preponderance of the evidence that Lira
discharged a firearm “during and in relation to or in
furtherance” of a drug trafficking offense. Based on this
finding, Lira was sentenced to an additional consecutive term

Case: 11-30324

4

08/02/2013

ID: 8727631

DktEntry: 43-1

UNITED STATES V . LIRA

of 120 months, the mandatory minimum sentence. 18 U.S.C.
§ 924(c)(1)(A)(iii).
On appeal, Lira challenges the imposition of the ten-year
sentence under 18 U.S.C. § 924(c)(1)(A)(iii). He argues that
four witnesses testified that Lira used and/or carried or
possessed a firearm in furtherance of different drug
trafficking incidents, but only one witness provided
admissible testimony regarding the discharge of a firearm.
Lira contends that the district court could not properly impose
the ten year mandatory minimum sentence for discharging a
firearm because the court had no way of knowing which
incident the jury relied upon to convict him of Count IV. We
do not reach Lira’s argument because a newly-announced
decision from the United States Supreme Court renders it
moot.
The district court relied on the then-current state of the
law when it sentenced Lira. In Harris v. United States,
536 U.S. 545, 556 (2002), the Supreme Court held that
whether a defendant discharged a firearm under
§ 924(c)(1)(A) is a sentencing element that may be found by
a judge by a preponderance of the evidence. But the rule in
Harris was reconsidered in Alleyne v. United States, 133
S. Ct. 2151, 2162–63 (2013), and overruled. Alleyne held
that “facts that increase mandatory minimum sentences must
be submitted to the jury” and established “beyond a
reasonable doubt.” Id. at 2163. As the government now
concedes, Lira’s sentence on Count IV does not comport with
Alleyne because the increased mandatory minimum sentence
was based on a fact found by the district court by a
preponderance of the evidence. Id. Accordingly, the sentence
on Count IV must be vacated. Because the sentencing
package has now become “unbundled,” the district court must

Page: 4 of 5

Case: 11-30324

08/02/2013

ID: 8727631

UNITED STATES V . LIRA

DktEntry: 43-1

Page: 5 of 5

5

reexamine the entire sentence in light of the vacated sentence
on Count IV. See United States v. Avila-Anguiano, 609 F.3d
1046, 1049 (9th Cir. 2010). We vacate Lira’s entire sentence
and remand this case to the district court for re-sentencing.
VACATED and REMANDED.