                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30330

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00015-SEH-1

  v.
                                                 MEMORANDUM *
CLEMENT DAVID KING,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-30031

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00015-SEH-1

  v.

CLEMENT DAVID KING,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted February 7, 2012
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and GOULD, Circuit Judges, and BEISTLINE, Chief
District Judge.**

      Clement King challenges his convictions for sexual abuse of a minor and

attempted receipt of child pornography. He also challenges his sentence as

procedurally and substantively unreasonable.

      The district court did not abuse its discretion in admitting the parties’

stipulation that King had previously been adjudicated a juvenile delinquent for

sexual abuse of a minor. The district court applied the factors of United States v.

LeMay, 260 F.3d 1018 (9th Cir. 2001), and properly concluded that the probative

value of the stipulation was not substantially outweighed by the prejudicial effect.

The juvenile and adult offenses were similar and close in time, and the evidence

was necessary to rebut King’s argument to the jury on each count that he had not

committed the offense. See id. at 1028–29.

      The Federal Juvenile Delinquency Act provision that “records shall be

safeguarded from disclosure to unauthorized persons,” 18 U.S.C. § 5038(a), does

not apply. A statutory exception directs that “records shall be released to the

extent necessary to meet the following circumstances: (1) inquiries from another

court of law.” § 5038(a)(1). King also contends that after Roper v. Simmons, 543


       **
              The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.

                                          2
U.S. 551 (2005), it is inappropriate to introduce evidence of juvenile adjudications.

That case addressed the inappropriateness of imposing the death penalty on a

juvenile, however, and does not otherwise affect juvenile proceedings.

      In sentencing, the district court did not err in considering King’s juvenile

adjudication under U.S.S.G. § 2G2.2(b)(5). See United States v. Garner, 490 F.3d

739, 743 (9th Cir. 2007). The district court nonetheless procedurally erred in

calculating the Guidelines range. King was charged with both offenses in a single

superseding indictment. The district court separated the two offenses for trial, but

declined to continue sentencing on count 1 until after trial on count 2. At

sentencing on count 2, the court treated King’s conviction on count 1 as a specific

offense characteristic. It therefore erred in not recognizing that the counts involved

substantially the same harm, see U.S.S.G. § 3D1.2(c), and should have been

grouped. The district court reasoned that the offense was listed as an excluded

offense under subsection (d). Such offenses, however, may nonetheless be

grouped under subsection (c). See, e.g., § 3D1.2(d) (“Exclusion of an offense from

grouping under this subsection does not necessarily preclude grouping under

another subsection.”); United States v. Tank, 200 F.3d 627, 632–33 (9th Cir. 2000).

The court imposed two consecutive sentences at the top ends of their respective




                                          3
ranges. The upper end of the single properly calculated advisory range, however,

is 103 months lower than the sentence the district court imposed.

      As we hold the district court committed procedural error, we need not

consider now King’s argument that the district court’s sentence was substantively

unreasonable.

      Sentence VACATED and REMANDED for resentencing.




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