U.S. v. Cabaccang

Full title: UNITED STATES of America, Plaintiff-Appellee, v. James CABACCANG…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 26, 2003

341 F.3d 905 (9th Cir. 2003)

Opinion

Nos. 98-10159, 98-10195, 98-10203.

Filed August 26, 2003.

D.C. No. CR-97-00095-3-JSU, CR-97-00095-2-JSU, CR-97-00095-1-JSU.

Kathleen A. Felton, Lisa Simotas, Washington, DC, for Plaintiff-Appellee.

Elizabeth A. Fisher, Honolulu, HI, Rory K. Little, Hasting College of Law, San Francisco, CA, Arthur E. Ross, Sarah Courageous, Honolulu, HI, for Defendant-Appellant.

Roy Toves Cabaccang, USP-Leavenworth, Leavenworth, KS, pro se.

Before: SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, KLEINFELD, HAWKINS, GRABER, McKEOWN, W. FLETCHER, FISHER, PAEZ and TALLMAN, Circuit Judges.

Order; Special Concurrence by Judge GRABER; Dissent by Judge KOZINSKI.

ORDER

In United States v. Cabaccang, 332 F.3d 622, 637 (9th Cir. 2003), we remanded Roy Cabaccang's conviction on Count I for reconsideration in light of our holding that he did not violate 21 U.S.C. § 952. We now GRANT appellants' motion for clarification as to Count VI, and we remand that count to the district court. If the district court affirms Roy Cabaccang's conviction on Count I, his conviction and sentence on Count VI shall stand. If the district court reverses the conviction on Count I, it shall reconsider Roy Cabaccang's sentence on Count VI. We DENY appellants' motion to remand the remaining counts, including Count II, to the district court.

GRABER, Circuit Judge, with whom McKEOWN, Circuit Judge, joins, specially concurring.

I continue to believe that the convictions and sentences should be affirmed in their entirety, for the reasons stated in the dissent that I joined. However, I have no objection to the majority's desire to clarify its holding. Accordingly, I concur specially in the order clarifying the majority's opinion.

KOZINSKI, Circuit Judge, with whom O'SCANNLAIN and TALLMAN, Circuit Judges, join, dissenting.

I respectfully dissent. Because I continue to believe that we should affirm, I cannot join an order that further unravels the district court's judgment.