United States v. Mark Forrester
UNITED STATES of America, Plaintiff-Appellee, v. Mark Stephen FORRESTER, Defendant-Appellant
- Area
- other
- Panel
- Andrew J. Kleinfeld (author), Mary M. McKeown, Quist
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION OCT 23 2012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. 11-50193 Plaintiff - Appellee, D.C. No. 3:01-cr-03177-W-2 v. MEMORANDUM * MARK STEPHEN FORRESTER, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding Submitted October 11, 2012 ** Pasadena, California Before: KLEINFELD and McKEOWN, Circuit Judges, and QUIST, Senior District Judge.*** * 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). *** The Honorable Gordon J. Quist, Senior District Judge for the U.S. District Court for Western Michigan, sitting by designation. Mark Stephen Forrester appeals his conviction and sentence for conspiracy to manufacture and distribute ecstasy in violation of 21 U.S.C. §§ 846, 841(a)(1).
He raises two arguments. We address each in turn and affirm.
We review de novo the district court’s decision to preclude Forrester from presenting the defense that ecstasy should not be a Schedule I controlled substance.
United States v. Forrester, 616 F.3d 929, 934 (9th Cir. 2010) [Forrester II].
Forrester II has already decided this issue, holding that “substantive collateral attacks on permanent scheduling orders are impermissible in criminal cases where defendants’ sentences will be determined by those scheduling orders.” Id. at 937.
Forrester II is the law of the circuit and the law of the case. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc). All of Forrester’s controlled substance scheduling arguments, including this one, were either decided explicitly or addressed by necessary implication in Forrester II. See United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000).
We review factual findings related to the estimated yield of seized drug- making materials for clear error. Forrester II, 616 F.3d at 935. The district court found the government’s expert credible, and chose not to believe Forrester’s 2 calculations. It did not clearly err in accepting the government’s ecstasy yield estimates instead of Forrester’s, nor did it ignore Forrester II’s instruction to select a calculation bringing less punishment when presented with two equally good measures. See id. at 949.
AFFIRMED.