                          NOT FOR PUBLICATION                          FILED
                   UNITED STATES COURT OF APPEALS                      DEC 16 2019
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
                          FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No.   18-30253

               Plaintiff-Appellant,            D.C. No. 3:18-cr-05016-RBL

 v.
                                               MEMORANDUM*
CARMEN MOSAD CALIEG BARNETT,

               Defendant-Appellee.

                  Appeal from the United States District Court
                    for the Western District of Washington
                  Ronald B. Leighton, District Judge, Presiding

                         Submitted December 12, 2019**
                             Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT, District
Judge***

      Carmen Barnett pled guilty to possessing and accessing with intent to view

child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The Government


      *
          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 Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
appeals the district court’s finding that Barnett’s prior state conviction for third-

degree rape of a child in violation of Washington Revised Code § 9A.44.079 does

not constitute a predicate offense triggering the ten-year mandatory minimum

sentence under 18 U.S.C. § 2252(b)(2).          We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(b), and we reverse and remand for

resentencing.

      The Government preserved its objection to Barnett’s sentence. Though it did

not object to the Presentence Investigation Report, the Government maintained both

in its sentencing memorandum and at sentencing that Barnett was subject to

§ 2252(b)(2)’s ten-year mandatory minimum sentence. Therefore, we may hear its

appeal.   See United States v. Hammond, 742 F.3d 880, 884 (9th Cir. 2014)

(Government’s arguments to apply mandatory minimum sentence in sentencing

memorandum and at sentencing sufficient to preserve issue on appeal).

      The district court erred in refusing to impose the ten-year mandatory

minimum sentence here. Indeed, Barnett now agrees that we are bound by United

States v. Sullivan, 797 F.3d 623 (9th Cir. 2015), which, he further concedes,

concerned two California statutes bearing no material distinction from the

Washington statute under which he was convicted. He nevertheless contends that

Sullivan was wrongly decided—apparently to preserve the issue for further review.




                                         2
We are, of course, bound by Sullivan. United States v. Boitano, 796 F.3d 1160, 1164

(9th Cir. 2015) (circuit precedent reversible only en banc). We accordingly reverse.

      REVERSED and REMANDED for RESENTENCING.




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