United States of America v. Curtis Dion Earley

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CURTIS DION EARLEY,
Defendant-Appellant.
No. 18-30241
D.C. No.
2:18-cr-00010-DLC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Submitted December 11, 2019**
Seattle, Washington
Before: GRABER and GOULD, Circuit Judges, and EZRA,*** District Judge.
Curtis Dion Earley appeals the district court’s enhancement of his sentence
under United States Sentencing Guidelines Section 2K2.1(b)(4), Application Note
* 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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
FILED
DEC 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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8(B). Earley argues that the Note violates the Due Process Clause of the Fifth
Amendment. Reviewing de novo, United States v. Padilla-Diaz, 862 F.3d 856,
860 (9th Cir. 2017), we affirm.
We conclude that this case is controlled by United States v. Prien-Pinto, 917
F.3d 1155 (9th Cir. 2019), cert. denied, 140 S. Ct. 172 (2019), and Stinson v.
United States, 508 U.S. 36 (1993). In Stinson, the Court held that the Application
Notes to the Sentencing Guidelines are authoritative “unless [they] violate[] the
Constitution or a federal statute, or [are] inconsistent with, or [are] a plainly
erroneous reading of, [a] guideline.” 508 U.S. at 38.
Application Note 8(B) does not violate the Fifth Amendment’s Due Process
Clause. A regulation may impose strict criminal liability without violating the
Fifth Amendment’s Due Process Clause if the regulation is in the interest of public
safety. Prien-Pinto, 917 F.3d at 1158 (citing United States v. Freed, 401 U.S. 601,
607–09 (1971)). Here, like the Guideline’s omission of a mens rea, United States
v. Goodell, 990 F.2d 497, 499–500 (9th Cir. 1993), Application Note 8(B)’s
imposition of strict liability does not violate the Due Process Clause because the
enhancement is “rationally related to the goal of crime prevention,” Prien-Pinto,
917 F.3d at 1158, 1161.
Application Note 8(B) does not contradict any statute, including 18 U.S.C. §
922(j) and its surrounding framework, United States v. Ellsworth, 456 F.3d 1146,

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1150–51 (9th Cir. 2006), and Note 8(B) is a reasonable reading of Section
2K2.1(4)(b), Prien-Pinto, 917 F.3d at 1158. The Note is due “controlling weight.”
Stinson, 508 U.S. at 45 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945)).
AFFIRMED.

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