United States of America v. STEVEN LAVINSKY, AKA amhari99, AKA amhari99@yahoo.com, AKA Chabon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
STEVEN LAVINSKY, AKA amhari99,
AKA amhari99@yahoo.com, AKA
Chabon,
Defendant-Appellee.
No. 16-50428
D.C. No. 2:16-cr-00161-R-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted February 16, 2018**
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and MENDOZA,***
District Judge.
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.

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The government appeals Steven Lavinsky’s 48-month sentence of
imprisonment, which is below the 60-month minimum mandated by statute. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate Lavinsky’s sentence
and remand to the district court for resentencing.
Lavinsky’s statute of conviction provides that “[w]hoever violates” that
provision “shall be . . . imprisoned not less than 5 years and not more than 20
years.” 18 U.S.C. § 2252A(b)(1) (emphases added). “It is axiomatic that a
statutory minimum sentence is mandatory.” United States v. Sykes, 658 F.3d 1140,
1146 (9th Cir. 2011). That is, “[w]here ‘no exception to the statutory minimum
applies . . . , the court lack[s] the authority to refuse to impose’” the mandatory
minimum. Id. (quoting United States v. Haynes, 216 F.3d 789, 799–800 (9th Cir.
2000)). No exception applies here, but the district court sentenced Lavinsky to a
below-minimum term of imprisonment nevertheless, explaining only that the
circumstances of lifetime supervision made that sentence sufficient. That was
error.
Lavinsky’s sole contention on appeal is that statutory mandatory minimum
sentences are unconstitutional under United States v. Booker, 543 U.S. 220 (2005),
but our precedent forecloses that argument. See United States v. Ching Tang Lo,
447 F.3d 1212, 1234 n.15 (9th Cir. 2006) (“There is nothing in Booker to suggest
2

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that statutorily mandated minimum sentences are merely advisory if the sentence is
based on facts found by a jury by a preponderance of the evidence.”).
We therefore vacate and remand for resentencing. On remand, the district
court shall sentence Lavinsky within the range mandated by 18 U.S.C.
§ 2252A(b)(1).1
Sentence VACATED and REMANDED for resentencing.
1 We decline Lavinsky’s invitation to strike the government’s opening brief
and to dismiss the appeal for failure to prosecute. See 9th Cir. R. 31-2.3.
3

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