United States v. 2019-02-13 | 17-30187 | USA V. DOMENICK HOWARD | nonprecedential | memorandum…

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30187
Plaintiff-Appellee, D.C. No.
CR 16-14-H-CCL
v.
DOMINICK JAMES HOWARD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted February 8, 2019**
Seattle, Washington
Before: IKUTA and CHRISTEN, Circuit Judges, and FREUDENTHAL,*** District
Judge
* 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).
*** The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
FILED
FEB 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendant Dominick James Howard appeals his 120-month sentence
following his guilty plea for one count of possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C. §
1291, and affirm.
On appeal, Howard challenges the district court’s finding that Mont. Code
Ann. § 45-5-502 subjected him to the mandatory minimum penalty of ten years
pursuant to 18 U.S.C. § 2252A(b)(2). We review de novo whether prior
convictions support statutory mandatory-minimum enhancements. United States v.
Sullivan, 797 F.3d 623, 635 (9th Cir. 2015) (citation omitted). The district court
did not err in applying the sentencing enhancement. United States v. Sinerius, 504
F.3d 737, 741-42 (9th Cir. 2007) (finding Mont. Code Ann. § 45-5-502 qualified as
a prior conviction for sexual abuse). Howard claims Sinerius should be
reconsidered, but this panel has no power to overrule circuit precedent. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that circuit
precedent may be overturned only en banc, subject to exceptions not applicable
here).
The district court did not err in altering its oral pronouncement at sentencing
by imposing restitution in the written judgment. “[W]ithin 14 days after
sentencing, the court may correct a sentence that resulted from . . . clear error.”
Fed. R. Crim. P. 35(a). Howard’s restitution was mandatory. 18 U.S.C. §

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2259(b)(4). The district court was authorized to correct the clear error in its oral
pronouncement.
AFFIRMED.

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