Rmt Dominique Charles Blanton v. Dominique Charles Blanton, a/k/a DOMANIQUE CHARLES No. 05-50717 BLANTON, DOMANIQUE…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 05-50302
v.  D.C. No.
CR-04-00250-RMT DOMINIQUE CHARLES BLANTON,
Defendant-Appellee. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DOMINIQUE CHARLES BLANTON,
a/k/a DOMANIQUE CHARLES No. 05-50717
BLANTON, DOMANIQUE CHARLES
 D.C. No. GLANTON, DOMANIQUE BLANTON, CR-04-00250-RMT DOMINIUE RODZAY, DOMANQUE
BLANTON, DOMINIQUE LEE BLANTON,
“RODZAY”, “LILRODSAY”,
“RODZAG”, “LIL RODZAY”, “DUKE”
and “TINYZAY”,
Defendant-Appellee. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 05-50752
v.  D.C. No.
CR-04-00250-RMT DOMINIQUE CHARLES BLANTON,
Defendant-Appellee. 
1755

-- 1 of 11 --

 UNITED STATES OF AMERICA, No. 05-50887
Plaintiff-Appellant, D.C. No.
v.  CR-04-00250-RMT
DOMINIQUE CHARLES BLANTON, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Submitted August 16, 2006*
Pasadena, California
Filed February 12, 2007
Before: Alex Kozinski, Diarmuid F. O’Scannlain, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge O’Scannlain
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1756 UNITED STATES v. BLANTON

-- 2 of 11 --

COUNSEL
Debra Wong Yang, United States Attorney, Central District of
California, Assistant United States Attorneys Thomas P.
O’Brien and Erik M. Silber were on the briefs for the
plaintiff-appellant.
Dean R. Gits, Acting Federal Public Defender, Central Dis-
trict of California, and Deputy Public Defender Carlton F.
Gunn were on the brief for the defendant-appellee.
OPINION
O’SCANNLAIN, Circuit Judge:
We must determine whether the Fifth Amendment’s Dou-
ble Jeopardy Clause prohibits the government from appealing
a district court’s allegedly erroneous denial of an Armed
Career Criminal Act sentencing enhancement.
I
Dominique Blanton was arrested by the Los Angeles Police
Department on April 19, 2003, and charged by the State of
California with being a felon in possession of a firearm and
ammunition in violation of Cal. Penal Code § 12021(a)(1).
Blanton was convicted of that offense in Los Angeles County
Superior Court on May 1, 2003.
1759 UNITED STATES v. BLANTON

-- 3 of 11 --

Based on the same arrest, on March 5, 2004, a federal
grand jury charged Blanton with being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). The federal
indictment included a charge under the Armed Career Crimi-
nal Act (“ACCA”), 18 U.S.C. § 924(e), that Blanton commit-
ted the offense after having sustained at least three prior
violent felony convictions. Those convictions included an
assault with a deadly weapon charge under Cal. Penal Code
§ 245(a)(1), as well as three qualifying juvenile delinquent
adjudications—two convictions for robbery under Cal. Penal
Code § 211, and one conviction for voluntary manslaughter,
under Cal. Penal Code § 192(a). Blanton filed a motion to
bifurcate the guilt and ACCA sentencing phases of the trial,
which the district court granted. The jury found Blanton guilty
as charged.
Blanton then waived his right to a jury trial as to the ACCA
sentencing enhancement phase, where the government intro-
duced various records of conviction and the defendant stipu-
lated that he was the person identified in all of them.
According to the government, the documents showed that the
defendant: (1) had been convicted of two counts of robbery
with an enhancement for the use of a firearm; (2) had pleaded
no contest to a charge of voluntary manslaughter, with an
enhancement because a firearm had been used by one of the
principals in the offense; and (3) had pleaded guilty to assault
with a deadly weapon.
Blanton filed a Federal Rule of Criminal Procedure 29
motion for a judgment of acquittal, asserting that because two
of these predicate convictions were non-jury juvenile adjudi-
cations, they did not qualify as predicate offenses under
United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). The
district court, while holding that non-jury juvenile adjudica-
tions could qualify as predicate offenses under Tighe, went on
to hold that under Blakely v. Washington, 542 U.S. 296
(2004), non-jury juvenile adjudications could not be predicate
offenses for the purposes of ACCA sentencing enhancement
1760 UNITED STATES v. BLANTON

-- 4 of 11 --

because the underlying conduct was never proven to a jury.
The district court thereupon granted the Rule 29 motion.
United States v. Blanton, 367 F. Supp. 2d 1288 (C.D. Cal.
2005).
The government timely appealed.
II
Blanton asserts that the Double Jeopardy Clause of the
Fifth Amendment bars this appeal, but on the merits argues
that the district court reached the proper result. Blanton con-
tends that because the district court acquitted him of the
ACCA enhancement, remanding for further proceedings
would expose him to jeopardy a second time. The government
contends that because the district court did not resolve any
factual questions in Blanton’s favor, the Double Jeopardy
Clause does not apply. Under 18 U.S.C. § 3731, the United
States may appeal “whenever the Constitution would permit,”
United States v. Wilson, 420 U.S. 332, 337 (1975), “except
that no appeal shall lie where the double jeopardy clause of
the United States Constitution prohibits further prosecution.”
18 U.S.C. § 3731. See also U.S. Const. amend. V (guarantee-
ing that no person shall “be subject for the same offence to be
twice put in jeopardy of life or limb”).
Neither party disputes that because Tighe concluded that
the Sixth Amendment applies to the determination of the fact
of a prior non-jury juvenile conviction (i.e., that such a fact
does not fall into the Almendarez-Torres v. United States, 523
U.S. 224 (1998), exception), the Double Jeopardy Clause may
be implicated. See United States v. Velasco-Heredia, 319 F.3d
1080, 1086-87 (9th Cir. 2003) (stating that the Double Jeop-
ardy Clause bars the government from proving facts which
increase a sentence beyond the statutory maximum not proven
in the original prosecution); see also Apprendi v. New Jersey,
530 U.S. 466, 476, 495 (2000).
1761 UNITED STATES v. BLANTON

-- 5 of 11 --

A
In United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006)
(en banc), Ogles, a California resident with a license to sell
firearms in California, was arrested for selling a firearm at a
gun show in Arizona and was indicted on a count of “ ‘will-
fully engag[ing] in the business of dealing firearms without a
license.’ ” Id. at 1098 (quoting indictment). At the close of the
government’s case, Ogles filed a Rule 29 motion for a judg-
ment of acquittal, contending “that § 922(a)(1)(A)[1] applies
only to an unlicensed dealer and that he was a licensed deal-
er.” Id. The government proffered a competing interpretation
of the statute, but the district court adopted Ogles’s interpreta-
tion. The government argued on appeal “that the acquittal . . .
is not a ‘genuine acquittal’ because it was based on the district
court’s construction of § 922(a)(1)(A), a legal conclusion
unrelated to Ogles’ factual guilt or innocence.” Id. at 1100.
[1] We rejected the government’s view, explaining that
“the determinative question is whether the district court found
the evidence legally insufficient to sustain a conviction.” Id.
at 1103. We explained:
In deciding the Rule 29(a) motion, the district court
adopted [an alternative] interpretation of
§ 922(a)(1)(A) . . . and concluded that the term “li-
censed dealer” does not have a geographic compo-
nent. After adopting this interpretation, the district
court determined that a factual element of the
offense—namely, that Ogles was dealing firearms
without a license at the time of the challenged
conduct—had not been proven.
118 U.S.C. § 922(a)(1)(A) reads, “(a) It shall be unlawful—(1) for any
person—(A) except a licensed importer, licensed manufacturer, or
licensed dealer, to engage in the business of importing, manufacturing, or
dealing in firearms, or in the course of such business to ship, transport, or
receive any firearm in interstate or foreign commerce.”
1762 UNITED STATES v. BLANTON

-- 6 of 11 --

Id. We went on to note: “The Court’s double jeopardy deci-
sions do not . . . condition an acquittal under Rule 29(a) on
the district court’s examination of contested facts. Here, the
district court determined that a factual element of the offense
had not been proved by the government. What is this if not
a ‘resolution’?” Id. at 1104.
[2] Here, the district court applied ACCA, Tighe, and rele-
vant Sixth Amendment principles to analyze “predicate
offenses” just as the district court in Ogles construed the term
“licensed dealer.” Here, as in Ogles, the district court con-
cluded that the evidence was insufficient to convict. Compare
Blanton, 367 F. Supp. 2d at 1292 (“Thus, the court finds that
Defendant’s juvenile adjudications may not serve as predicate
offenses under 18 U.S.C. § 924(e)(1) because Defendant was
not afforded the right to a jury trial in those proceedings.
Accordingly, IT IS ORDERED that Defendant’s Rule 29
motion is GRANTED.”), with Ogles, 440 F.3d at 1103
(“After adopting this interpretation, the district court deter-
mined that a factual element of the offense . . . had not been
proven.” (emphasis omitted)). The district court appeared to
take it as given that the convictions had been proven, but con-
cluded that under its interpretation of the ACCA, Tighe, and
Blakely, the evidence was legally insufficient to qualify as
predicates for enhanced sentencing. This mirrors Ogles,
where the district court concluded that, under its interpretation
of “licensed dealer,” the evidence was insufficient to convict.
[3] None of the “narrow” exceptions to double jeopardy
described in United States v. Scott, 437 U.S. 82 (1978),
applies. There the dismissal was on grounds “unrelated to fac-
tual guilt or innocence.” Ogles, 440 F.3d at 1102. Instead, the
decision was based on preindictment delay, which is compati-
ble with a finding that the defendant was factually guilty.
Scott, 437 U.S. at 82. Here, in contrast, the district court’s
conclusion—that there was insufficient evidence to support an
ACCA enhancement—squarely addressed whether the gov-
1763 UNITED STATES v. BLANTON

-- 7 of 11 --

ernment proved an element of the ACCA offense; thus, the
district court’s ruling is directly related to guilt or innocence.
[4] Further, the Supreme Court made clear in Smalis v.
Pennsylvania, 476 U.S. 140 (1986), that it is irrelevant if the
acquittal is based on a legal error:
The status of the trial court’s judgment as an acquit-
tal is not affected by the Commonwealth’s allegation
that the court erred in deciding what degree of reck-
lessness was . . . required to be shown under Penn-
sylvania’s definition of [third-degree] murder. [T]he
fact that the acquittal may result from erroneous evi-
dentiary rulings or erroneous interpretations of gov-
erning legal principles . . . affects the accuracy of
that determination but it does not alter its essential
character.
Id. at 144 n.7 (alterations in original) (emphasis added) (inter-
nal quotation marks and citations omitted). We are satisfied
that double jeopardy is implicated even if the district court’s
legal interpretation of the ACCA was faulty. As we held in
Ogles, “the determinative question is whether the district
court found the evidence legally insufficient to sustain a con-
viction.” Ogles, 440 F.3d, at 1103. This is precisely the ques-
tion that the district court determined here. Accordingly,
jeopardy attached to that judgment, whether it was made in
error or not.
B
[5] The government contends, however, that Blanton can-
not claim the protection of the Double Jeopardy Clause
because he deliberately waited until jeopardy attached before
raising it. Such argument misses two key points. First, Blan-
ton’s Rule 29 motion challenged the sufficiency of the evi-
dence, not the indictment itself. Specifically, Blanton
contended that “[t]he government has not carried its burden of
1764 UNITED STATES v. BLANTON

-- 8 of 11 --

proving that the two alleged juvenile adjudications constitute
violent felonies for purposes of ACCA.” Because the motion
turned on the evidence, even uncontested evidence, it could
not be raised until the evidence was presented at trial. United
States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (“ ‘[A]
defendant may not properly challenge an indictment, suffi-
cient on its face, on the ground that the allegations are not
supported by adequate evidence.’ ” (quoting United States v.
Mann, 517 F.2d 259, 267 (5th Cir. 1975)); see also United
States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) (per
curiam) (“There is no summary judgment procedure in crimi-
nal cases. Nor do the rules provide for a pre-trial determina-
tion of the sufficiency of the evidence.”). Thus, Blanton’s
Rule 29 motion was timely.
Second, the government’s reliance on Scott, 437 U.S. 82,
to show that Blanton delayed too long in challenging the
ACCA enhancement is not persuasive. As we noted above, in
Scott the defendant moved to dismiss the indictment on the
grounds of preindictment delay. Here, in contrast, the ruling
was directly related to factual guilt or innocence (or directly
related to the essential elements of the ACCA enhancement
provisions to Blanton’s conduct), so Scott’s rationale does not
apply.2
C
In Tighe, we held that the fact of non-jury juvenile convic-
tions must be proved beyond a reasonable doubt. 266 F.3d at
1194. Further, we have also held that the Double Jeopardy
Clause bars the government from later proving an Apprendi
fact—i.e., a fact that enhances the sentence above the statu-
tory maximum—not proven in the original prosecution.
2Further, the timing of the motion in this case mirrors that in Ogles. 440
F.3d at 1097 (“At the conclusion of the government’s case, the district
court granted Ogles’ Rule 29(a) motion for a judgment of acquittal[.]”
(emphasis added)).
1765 UNITED STATES v. BLANTON

-- 9 of 11 --

Velasco-Heredia, 319 F.3d at 1086-87. The Government
argues that under Monge v. California, 524 U.S. 721 (1998),
the Double Jeopardy Clause does not apply to sentence
enhancements. Although Velasco-Heredia’s contrary holding
is controlling here, Monge, to the extent it remains good law
after Apprendi, does not apply.
[6] Without question, Monge stands for the proposition
that, outside of the death penalty context, double jeopardy
considerations do not apply to sentencing proceedings. 524
U.S. at 728 (“Historically, we have found double jeopardy
protections inapplicable to sentencing proceedings, because
the determinations at issue do not place a defendant in jeop-
ardy for an ‘offense.’ ” (citation omitted)). But Monge’s anal-
ysis of double jeopardy in the sentencing context was
undertaken before the Court’s decision in Apprendi. Thus, in
Monge the Court found it significant that the sentencing
enhancement at issue was not part of the offense, noting that
the Court had rejected “an absolute rule that an enhancement
constitutes an element of the offense any time that it increases
the maximum sentence to which a defendant is exposed.” Id.
at 729. But in Apprendi the Court embraced precisely that
rule. 530 U.S. at 476, 488 n.14.
[7] Similarly, the Court in Monge refused to apply double
jeopardy to sentencing proceedings even when they bore the
hallmarks of a trial, in important part because the trial-like
safeguards were a matter of “legislative grace, not constitu-
tional command.” 524 U.S. at 734. Again, after Apprendi and
our own decisions in Tighe and Velasco-Heredia, the pro-
ceedings we review here were trial-like not by legislative
grace or judicial caprice, but precisely because of the constitu-
tional command of the Sixth Amendment.
[8] The Court cautioned in Apprendi that labels such as
“sentencing enhancement” or “element” do not provide prin-
cipled reasons for distinguishing what they name. For this rea-
son, without assuming that Monge is no longer good law, but
1766 UNITED STATES v. BLANTON

-- 10 of 11 --

following the more recent dictate of Apprendi, we find that
the general inapplicability of the Double Jeopardy Clause to
sentencing proceedings is not sufficient to answer the ques-
tion presented in this case. Rather, we look behind the labels
to the constitutional commands governing the treatment of
sentencing enhancements that increase the statutory maximum
to which the defendant would otherwise be exposed. To do
otherwise would exalt form over substance and thereby under-
mine the constitutional guarantees of the Fifth and Sixth
Amendments, and this we are both unwilling and forbidden to
do.
III
[9] In summary, we agree with Blanton that the district
court resolved the issue of guilt or innocence in his favor, and
that the Double Jeopardy Clause bars this appeal. See Ogles,
440 F.3d at 1103-04. It is immaterial whether the district
court’s interpretation of the relevant legal issue was correct.
Id. at 1103; see also Smalis, 476 U.S. at 144 n.7; Smith v.
Massachusetts, 543 U.S. 462, 469 (2005). Under 18 U.S.C.
§ 3731, therefore, the government is without authority to
appeal. The appeal is therefore
DISMISSED.
1767 UNITED STATES v. BLANTON

-- 11 of 11 --