                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30241

                Plaintiff-Appellee,             D.C. No.
                                                2:18-cr-00010-DLC-1
 v.

CURTIS DION EARLEY,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Montana
                   Dana L. Christensen, District Judge, Presiding

                          Submitted December 11, 2019**
                              Seattle, Washington

Before: GRABER and GOULD, Circuit Judges, and EZRA,*** District Judge.

      Curtis Dion Earley appeals the district court’s enhancement of his sentence

under United States Sentencing Guidelines Section 2K2.1(b)(4), Application Note



      *
             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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
8(B). Earley argues that the Note violates the Due Process Clause of the Fifth

Amendment. Reviewing de novo, United States v. Padilla-Diaz, 862 F.3d 856,

860 (9th Cir. 2017), we affirm.

      We conclude that this case is controlled by United States v. Prien-Pinto, 917

F.3d 1155 (9th Cir. 2019), cert. denied, 140 S. Ct. 172 (2019), and Stinson v.

United States, 508 U.S. 36 (1993). In Stinson, the Court held that the Application

Notes to the Sentencing Guidelines are authoritative “unless [they] violate[] the

Constitution or a federal statute, or [are] inconsistent with, or [are] a plainly

erroneous reading of, [a] guideline.” 508 U.S. at 38.

      Application Note 8(B) does not violate the Fifth Amendment’s Due Process

Clause. A regulation may impose strict criminal liability without violating the

Fifth Amendment’s Due Process Clause if the regulation is in the interest of public

safety. Prien-Pinto, 917 F.3d at 1158 (citing United States v. Freed, 401 U.S. 601,

607–09 (1971)). Here, like the Guideline’s omission of a mens rea, United States

v. Goodell, 990 F.2d 497, 499–500 (9th Cir. 1993), Application Note 8(B)’s

imposition of strict liability does not violate the Due Process Clause because the

enhancement is “rationally related to the goal of crime prevention,” Prien-Pinto,

917 F.3d at 1158, 1161.

      Application Note 8(B) does not contradict any statute, including 18 U.S.C. §

922(j) and its surrounding framework, United States v. Ellsworth, 456 F.3d 1146,


                                           2
1150–51 (9th Cir. 2006), and Note 8(B) is a reasonable reading of Section

2K2.1(4)(b), Prien-Pinto, 917 F.3d at 1158. The Note is due “controlling weight.”

Stinson, 508 U.S. at 45 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 414 (1945)).

      AFFIRMED.




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