                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                      NOV 23 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         Nos. 13-50526
                                                      14-50428
                Plaintiff - Appellee,                 15-50032

    v.                                            D.C. No. 2:03-cr-01257-RSWL

DANNY JOSEPH FABRICANT,
                                                  MEMORANDUM*
                Defendant - Appellant.

                     Appeal from the United States District Court
                        for the Central District of California
                     Ronald S.W. Lew, District Judge, Presiding

                            Submitted November 18, 2015**

Before:        TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

         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

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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

                                            2                  13-50526, 14-50428 & 15-50032
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.




                                            3                 13-50526, 14-50428 & 15-50032
