1 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,

Plaintiff

- Appell ee ,

v. PATRICK LEGAN ,

Defendant

- Appell ant

. No. 18

- 30246

D.C. No. 9:07

- cr - 00018

- DWM

- 1

MEMORANDUM *

Appeal from the United States District Court f o r the District of Montana Donald W. Molloy, Senior District Judge , Presiding Argued and Submitted March 4, 2020

Portland, Oregon Before: FERNANDEZ , PAEZ , Circuit Judges, and BURGESS, ** Chief District Judge. Patrick Legan appeals his revocation sentence , in which the district court revoked one of Legan’s two lifetime terms of superv ised release and left the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Timothy M. Burgess , Chief United States District Judge for the District of Alaska , sitting by designation. 

# FILED

MAY 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

second term dormant

. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . W e vacate and remand to the district court for resentencing. In general, we review revocation sentences for abuse of discretion. United States v. Duff

, 831 F.2d 176, 177 (9th Cir. 1987). However, we review de novo the question at issue here, whether the district court properly interpreted the applicable statute and correctly resolved Legan’ s constitutional claim. Id

. It is undisputed that Legan’s unde rlying convictions for receipt and possession of child pornography violate the Fifth Amendment’s Double Jeopardy Clause. See United States v. Davenport , 519 F.3d 940 , 94 7 (9th Cir. 2008). However, Legan did not appeal or collaterally attack his judgment or sentence within the statute s of limitations. He cannot now attack the underlying conviction s through a revocation proceeding or an appeal of his revocation proceeding. United
States v. Castro

- Verdugo , 750 F.3d 1065, 1071 (9th Cir. 2014). Therefore, there is no procedural mechanism to reach back and correct Legan’s underlying convictions at this time

. Nonetheless, Legan’s concurrent lifetime terms of supervised release as re imposed on revocation perpetuate the underlying Double Jeopardy violation because revocation penalties are considered part of the penalty for the initial offense. See Johnson v. United States , 529 U.S. 694, 699 (2000); United S t ates v.3

Soto

- Olivas , 44 F.3d 788, 790 (9th Cir. 1995). Even though the district court d id not have jurisdiction to vacate either of the underlying convictions, it should have mitigated the ongoing Double Jeopardy violation at the time of revocation

. Despite Legan’s violative conduct, the interest s of justice warrant terminating one term of supervis ion

. Accordingly, we VACATE the revocation sentence and REMAND with instructions for the district court to terminat e one of the two lifetime terms of supervised release under 18 U.S.C. § 3583(e) (1)

. The district court may then resentence Legan on the remaining supervised release term.
VACATED and REMANDED for resentencing.U.S. v . Le

gan , No. 18-30246
FER NANDEZ, C i rc uit Judge , disse nting:
I re spe c tfully

disse nt be c a

use I pe rc e ive no a

uthority for using Le ga

n’ s viola tions of his te

rm s of supe rvise d re le a se a s a ve hic l e for ove rturning pa rt of his origina l se nte nc e
. 

# FIL ED

MAY 18 2020
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS