United States v. Hedrick
Opinion of the Court
MEMORANDUM
Timothy Allen Hedrick pled guilty to felony possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Hedrick contends a home visit by probation officers constitutes a search requiring reasonable suspicion. He also claims that § 922(g)(1) unconstitutionally exceeds Congress’s Commerce Clause authority. Lastly, he seeks resentencing pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), for a two-level enhancement.
Hedrick’s challenge to the constitutionality of § 922(g)(1) as applied to his case is foreclosed by our decisions in United States v. Younger, 398 F.3d 1179 (9th Cir. 2005), and United States v. Rousseau, 257 F.3d 925 (9th Cir. 2001). Moreover, Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), relied on by Hedrick, was recently overruled. See Gonzales v. Raich, — U.S. -, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).
Finally, Hedrick admitted in his plea only to possession of two firearms, a Westpoint 12-gauge shotgun and a Winchester, Model 94, 30-30 caliber rifle. The district judge, however, applied a two-level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(l)(A), for the six firearms found in Hedrick’s apartment, not merely the two he admitted to possessing. Because Hedrick did not admit to possession of four of the firearms and the facts with respect to his possession of them were not presented to a jury, the judge’s imposition of the sentencing enhancement for all six weapons violated his constitutional rights. See United States v. Booker, — U.S. -, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005). Pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), we “remand to the district court ... for the [limited] purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at 1074. On remand, the district judge shall give Hedrick an opportunity to opt out of resentencing if he is no longer interested in pursuing it. Id. at 1084.
AFFIRMED IN PART; REMANDED IN PART.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee v. Timothy Allen HEDRICK, Defendant—Appellant
- Cited By
- 1 case
- Status
- Published