Summary
affirming district court's decision not to entertain argument 21 U.S.C. § 851 is unconstitutional under Alleyne
Summary of this case from United States v. DoneyOpinion
No. 13-50526 No. 14-50428 No. 15-50032
11-23-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANNY JOSEPH FABRICANT, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 2:03-cr-01257-RSWL MEMORANDUM Appeal from the United States District Court for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
In these companion appeals, Danny Joseph Fabricant appeals pro se from various district court orders. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In Appeal No. 13-50526, Fabricant contends that the district court erred by declining to file his ex parte application for an order declaring 21 U.S.C. § 851 unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013). We affirm because, even if Fabricant is correct that his application should have been filed and considered on the merits, he is not entitled to relief. See id. at 2160 n.1 (declining to revisit the holding of Almendarez-Torres v. United States, 523 U.S. 224 (1998), that a prior conviction is not an element of the offense that must be proven to a jury).
In Appeal No. 14-50428, Fabricant contends that the district court erred by denying his application for DNA testing pursuant to 18 U.S.C. § 3600. We review de novo. See United States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015). The district court properly denied the application because Fabricant did not identity a theory of defense that would prove his actual innocence. See 18 U.S.C. § 3600(a)(6); Watson, 792 F.3d at 1179 (proposed testing must be capable of showing a probability of guilt "so low that actual innocence would be the only sensible explanation").
Finally, in Appeal No. 15-50032, Fabricant challenges the district court's order denying his application for an order requiring that (1) the government and the district court stamp his mail as "LEGAL MAIL - OPEN ONLY IN PRESENCE OF INMATE," and (2) the warden maintain a log for prison mailroom staff to sign upon receipt of Fabricant's outgoing legal mail. Because Fabricant's claim lacks merit, the district court properly denied relief. See Indep. Training & Apprenticeship Program v. California Dep't of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013).
Appeal Nos. 13-50526, 14-50428 & 15-50032: AFFIRMED.