United States v. Jason Dunlap ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30029
Plaintiff-Appellee, D.C. No. 3:15-cr-00107-SI-1
v.
MEMORANDUM*
JASON ANDREW DUNLAP,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted March 3, 2020**
Portland, Oregon
Before: WOLLMAN,*** FERNANDEZ, and PAEZ, Circuit Judges.
Jason Andrew Dunlap pleaded guilty to one count of production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e). He argues that the
*
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 Roger L. Wollman, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
district court erred on remand when it calculated his sentencing range under the
U.S. Sentencing Guidelines. See United States v. Dunlap, 731 F. App’x 698, 699
(9th Cir. 2018) (per curiam) (remanding for resentencing in light of United States
v. Reinhart, 893 F.3d 606 (9th Cir. 2018)). Having reviewed the district court’s
interpretation and application of the Guidelines de novo, we affirm. See United
States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (standard of review).
The district court correctly applied the Guidelines in the order set forth in
§ 1B1.1(a). The court determined that Dunlap’s combined adjusted offense level
was 48 under § 2G2.1, then decreased the adjusted offense level by 3 for
acceptance of responsibility under § 3E1.1, and thereafter applied application note
2 of Part A of Chapter 5, which states that “[a]n offense level of more than 43 is to
be treated as an offense level of 43.” We reject Dunlap’s argument that the
Guidelines establish an offense-level cap of 43, from which the 3-level reduction
for acceptance of responsibility should have been deducted.
AFFIRMED.
2 19-30029