FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 05-50302

v.  D.C. No.

DOMINIQUE CHARLES BLANTON, CR-04-00250-RMT

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

DOMINIQUE CHARLES BLANTON,

a/k/a DOMANIQUE CHARLES No. 05-50717 BLANTON, DOMANIQUE CHARLES

GLANTON  D.C. No. , DOMANIQUE BLANTON,

DOMINIUE RODZAY, DOMANQUE CR-04-00250-RMT

BLANTON, DOMINIQUE LEE BLANTON,

“RODZAY”, “LILRODSAY”,

“RODZAG”, “LIL RODZAY”, “DUKE”

and “TINYZAY”,

Defendant-Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 05-50752

v.  D.C. No.

DOMINIQUE CHARLES BLANTON, CR-04-00250-RMT

Defendant-Appellee. 

1755
UNITED STATES OF AMERICA, 

No. 05-50887 Plaintiff-Appellant,

D.C. No.

v.  CR-04-00250-RMT

DOMINIQUE CHARLES BLANTON,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Robert M. Takasugi, District Judge, Presiding

Submitted August 16, 2006*

Pasadena, California

Filed February 12, 2007

Before: Alex Kozinski, Diarmuid F. O’Scannlain, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge O’Scannlain

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

1756 UNITED STATES v. BLANTON
COUNSEL

Debra Wong Yang, United States Attorney, Central District of

California, Assistant United States Attorneys Thomas P.

O’Brien and Erik M. Silber were on the briefs for the

plaintiff-appellant. 

Dean R. Gits, Acting Federal Public Defender, Central District of California, and Deputy Public Defender Carlton F.

Gunn were on the brief for the defendant-appellee.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must determine whether the Fifth Amendment’s Double Jeopardy Clause prohibits the government from appealing

a district court’s allegedly erroneous denial of an Armed

Career Criminal Act sentencing enhancement. 

I

Dominique Blanton was arrested by the Los Angeles Police

Department on April 19, 2003, and charged by the State of

California with being a felon in possession of a firearm and

ammunition in violation of Cal. Penal Code § 12021(a)(1).

Blanton was convicted of that offense in Los Angeles County

Superior Court on May 1, 2003. 

UNITED STATES v. BLANTON 1759
Based on the same arrest, on March 5, 2004, a federal

grand jury charged Blanton with being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). The federal

indictment included a charge under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), that Blanton committed the offense after having sustained at least three prior

violent felony convictions. Those convictions included an

assault with a deadly weapon charge under Cal. Penal Code

§ 245(a)(1), as well as three qualifying juvenile delinquent

adjudications—two convictions for robbery under Cal. Penal

Code § 211, and one conviction for voluntary manslaughter,

under Cal. Penal Code § 192(a). Blanton filed a motion to

bifurcate the guilt and ACCA sentencing phases of the trial,

which the district court granted. The jury found Blanton guilty

as charged. 

Blanton then waived his right to a jury trial as to the ACCA

sentencing enhancement phase, where the government introduced various records of conviction and the defendant stipulated that he was the person identified in all of them.

According to the government, the documents showed that the

defendant: (1) had been convicted of two counts of robbery

with an enhancement for the use of a firearm; (2) had pleaded

no contest to a charge of voluntary manslaughter, with an

enhancement because a firearm had been used by one of the

principals in the offense; and (3) had pleaded guilty to assault

with a deadly weapon. 

Blanton filed a Federal Rule of Criminal Procedure 29

motion for a judgment of acquittal, asserting that because two

of these predicate convictions were non-jury juvenile adjudications, they did not qualify as predicate offenses under

United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). The

district court, while holding that non-jury juvenile adjudications could qualify as predicate offenses under Tighe, went on

to hold that under Blakely v. Washington, 542 U.S. 296

(2004), non-jury juvenile adjudications could not be predicate

offenses for the purposes of ACCA sentencing enhancement

1760 UNITED STATES v. BLANTON
because the underlying conduct was never proven to a jury.

The district court thereupon granted the Rule 29 motion.

United States v. Blanton, 367 F. Supp. 2d 1288 (C.D. Cal.

2005). 

The government timely appealed. 

II

Blanton asserts that the Double Jeopardy Clause of the

Fifth Amendment bars this appeal, but on the merits argues

that the district court reached the proper result. Blanton contends that because the district court acquitted him of the

ACCA enhancement, remanding for further proceedings

would expose him to jeopardy a second time. The government

contends that because the district court did not resolve any

factual questions in Blanton’s favor, the Double Jeopardy

Clause does not apply. Under 18 U.S.C. § 3731, the United

States may appeal “whenever the Constitution would permit,”

United States v. Wilson, 420 U.S. 332, 337 (1975), “except

that no appeal shall lie where the double jeopardy clause of

the United States Constitution prohibits further prosecution.”

18 U.S.C. § 3731. See also U.S. Const. amend. V (guaranteeing that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb”). 

Neither party disputes that because Tighe concluded that

the Sixth Amendment applies to the determination of the fact

of a prior non-jury juvenile conviction (i.e., that such a fact

does not fall into the Almendarez-Torres v. United States, 523

U.S. 224 (1998), exception), the Double Jeopardy Clause may

be implicated. See United States v. Velasco-Heredia, 319 F.3d

1080, 1086-87 (9th Cir. 2003) (stating that the Double Jeopardy Clause bars the government from proving facts which

increase a sentence beyond the statutory maximum not proven

in the original prosecution); see also Apprendi v. New Jersey,

530 U.S. 466, 476, 495 (2000).

UNITED STATES v. BLANTON 1761
A

In United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006)

(en banc), Ogles, a California resident with a license to sell

firearms in California, was arrested for selling a firearm at a

gun show in Arizona and was indicted on a count of “ ‘willfully engag[ing] in the business of dealing firearms without a

license.’ ” Id. at 1098 (quoting indictment). At the close of the

government’s case, Ogles filed a Rule 29 motion for a judgment of acquittal, contending “that § 922(a)(1)(A)[1] applies

only to an unlicensed dealer and that he was a licensed dealer.” Id. The government proffered a competing interpretation

of the statute, but the district court adopted Ogles’s interpretation. The government argued on appeal “that the acquittal . . .

is not a ‘genuine acquittal’ because it was based on the district

court’s construction of § 922(a)(1)(A), a legal conclusion

unrelated to Ogles’ factual guilt or innocence.” Id. at 1100. 

[1] We rejected the government’s view, explaining that

“the determinative question is whether the district court found

the evidence legally insufficient to sustain a conviction.” Id.

at 1103. We explained:

In deciding the Rule 29(a) motion, the district court

adopted [an alternative] interpretation of

§ 922(a)(1)(A) . . . and concluded that the term “licensed dealer” does not have a geographic component. After adopting this interpretation, the district

court determined that a factual element of the

offense—namely, that Ogles was dealing firearms

without a license at the time of the challenged

conduct—had not been proven. 

1

18 U.S.C. § 922(a)(1)(A) reads, “(a) It shall be unlawful—(1) for any

person—(A) except a licensed importer, licensed manufacturer, or

licensed dealer, to engage in the business of importing, manufacturing, or

dealing in firearms, or in the course of such business to ship, transport, or

receive any firearm in interstate or foreign commerce.” 

1762 UNITED STATES v. BLANTON
Id. We went on to note: “The Court’s double jeopardy decisions do not . . . condition an acquittal under Rule 29(a) on

the district court’s examination of contested facts. Here, the

district court determined that a factual element of the offense

had not been proved by the government. What is this if not

a ‘resolution’?” Id. at 1104. 

[2] Here, the district court applied ACCA, Tighe, and relevant Sixth Amendment principles to analyze “predicate

offenses” just as the district court in Ogles construed the term

“licensed dealer.” Here, as in Ogles, the district court concluded that the evidence was insufficient to convict. Compare

Blanton, 367 F. Supp. 2d at 1292 (“Thus, the court finds that

Defendant’s juvenile adjudications may not serve as predicate

offenses under 18 U.S.C. § 924(e)(1) because Defendant was

not afforded the right to a jury trial in those proceedings.

Accordingly, IT IS ORDERED that Defendant’s Rule 29

motion is GRANTED.”), with Ogles, 440 F.3d at 1103

(“After adopting this interpretation, the district court determined that a factual element of the offense . . . had not been

proven.” (emphasis omitted)). The district court appeared to

take it as given that the convictions had been proven, but concluded that under its interpretation of the ACCA, Tighe, and

Blakely, the evidence was legally insufficient to qualify as

predicates for enhanced sentencing. This mirrors Ogles,

where the district court concluded that, under its interpretation

of “licensed dealer,” the evidence was insufficient to convict.

[3] None of the “narrow” exceptions to double jeopardy

described in United States v. Scott, 437 U.S. 82 (1978),

applies. There the dismissal was on grounds “unrelated to factual guilt or innocence.” Ogles, 440 F.3d at 1102. Instead, the

decision was based on preindictment delay, which is compatible with a finding that the defendant was factually guilty.

Scott, 437 U.S. at 82. Here, in contrast, the district court’s

conclusion—that there was insufficient evidence to support an

ACCA enhancement—squarely addressed whether the govUNITED STATES v. BLANTON 1763
ernment proved an element of the ACCA offense; thus, the

district court’s ruling is directly related to guilt or innocence.

[4] Further, the Supreme Court made clear in Smalis v.

Pennsylvania, 476 U.S. 140 (1986), that it is irrelevant if the

acquittal is based on a legal error:

The status of the trial court’s judgment as an acquittal is not affected by the Commonwealth’s allegation

that the court erred in deciding what degree of recklessness was . . . required to be shown under Pennsylvania’s definition of [third-degree] murder. [T]he

fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles . . . affects the accuracy of

that determination but it does not alter its essential

character. 

Id. at 144 n.7 (alterations in original) (emphasis added) (internal quotation marks and citations omitted). We are satisfied

that double jeopardy is implicated even if the district court’s

legal interpretation of the ACCA was faulty. As we held in

Ogles, “the determinative question is whether the district

court found the evidence legally insufficient to sustain a conviction.” Ogles, 440 F.3d, at 1103. This is precisely the question that the district court determined here. Accordingly,

jeopardy attached to that judgment, whether it was made in

error or not. 

B

[5] The government contends, however, that Blanton cannot claim the protection of the Double Jeopardy Clause

because he deliberately waited until jeopardy attached before

raising it. Such argument misses two key points. First, Blanton’s Rule 29 motion challenged the sufficiency of the evidence, not the indictment itself. Specifically, Blanton

contended that “[t]he government has not carried its burden of

1764 UNITED STATES v. BLANTON
proving that the two alleged juvenile adjudications constitute

violent felonies for purposes of ACCA.” Because the motion

turned on the evidence, even uncontested evidence, it could

not be raised until the evidence was presented at trial. United

States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (“ ‘[A]

defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not

supported by adequate evidence.’ ” (quoting United States v.

Mann, 517 F.2d 259, 267 (5th Cir. 1975)); see also United

States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) (per

curiam) (“There is no summary judgment procedure in criminal cases. Nor do the rules provide for a pre-trial determination of the sufficiency of the evidence.”). Thus, Blanton’s

Rule 29 motion was timely. 

Second, the government’s reliance on Scott, 437 U.S. 82,

to show that Blanton delayed too long in challenging the

ACCA enhancement is not persuasive. As we noted above, in

Scott the defendant moved to dismiss the indictment on the

grounds of preindictment delay. Here, in contrast, the ruling

was directly related to factual guilt or innocence (or directly

related to the essential elements of the ACCA enhancement

provisions to Blanton’s conduct), so Scott’s rationale does not

apply.2

C

In Tighe, we held that the fact of non-jury juvenile convictions must be proved beyond a reasonable doubt. 266 F.3d at

1194. Further, we have also held that the Double Jeopardy

Clause bars the government from later proving an Apprendi

fact—i.e., a fact that enhances the sentence above the statutory maximum—not proven in the original prosecution.

2Further, the timing of the motion in this case mirrors that in Ogles. 440

F.3d at 1097 (“At the conclusion of the government’s case, the district

court granted Ogles’ Rule 29(a) motion for a judgment of acquittal[.]”

(emphasis added)). 

UNITED STATES v. BLANTON 1765
Velasco-Heredia, 319 F.3d at 1086-87. The Government

argues that under Monge v. California, 524 U.S. 721 (1998),

the Double Jeopardy Clause does not apply to sentence

enhancements. Although Velasco-Heredia’s contrary holding

is controlling here, Monge, to the extent it remains good law

after Apprendi, does not apply. 

[6] Without question, Monge stands for the proposition

that, outside of the death penalty context, double jeopardy

considerations do not apply to sentencing proceedings. 524

U.S. at 728 (“Historically, we have found double jeopardy

protections inapplicable to sentencing proceedings, because

the determinations at issue do not place a defendant in jeopardy for an ‘offense.’ ” (citation omitted)). But Monge’s analysis of double jeopardy in the sentencing context was

undertaken before the Court’s decision in Apprendi. Thus, in

Monge the Court found it significant that the sentencing

enhancement at issue was not part of the offense, noting that

the Court had rejected “an absolute rule that an enhancement

constitutes an element of the offense any time that it increases

the maximum sentence to which a defendant is exposed.” Id.

at 729. But in Apprendi the Court embraced precisely that

rule. 530 U.S. at 476, 488 n.14. 

[7] Similarly, the Court in Monge refused to apply double

jeopardy to sentencing proceedings even when they bore the

hallmarks of a trial, in important part because the trial-like

safeguards were a matter of “legislative grace, not constitutional command.” 524 U.S. at 734. Again, after Apprendi and

our own decisions in Tighe and Velasco-Heredia, the proceedings we review here were trial-like not by legislative

grace or judicial caprice, but precisely because of the constitutional command of the Sixth Amendment. 

[8] The Court cautioned in Apprendi that labels such as

“sentencing enhancement” or “element” do not provide principled reasons for distinguishing what they name. For this reason, without assuming that Monge is no longer good law, but

1766 UNITED STATES v. BLANTON
following the more recent dictate of Apprendi, we find that

the general inapplicability of the Double Jeopardy Clause to

sentencing proceedings is not sufficient to answer the question presented in this case. Rather, we look behind the labels

to the constitutional commands governing the treatment of

sentencing enhancements that increase the statutory maximum

to which the defendant would otherwise be exposed. To do

otherwise would exalt form over substance and thereby undermine the constitutional guarantees of the Fifth and Sixth

Amendments, and this we are both unwilling and forbidden to

do. 

III

[9] In summary, we agree with Blanton that the district

court resolved the issue of guilt or innocence in his favor, and

that the Double Jeopardy Clause bars this appeal. See Ogles,

440 F.3d at 1103-04. It is immaterial whether the district

court’s interpretation of the relevant legal issue was correct.

Id. at 1103; see also Smalis, 476 U.S. at 144 n.7; Smith v.

Massachusetts, 543 U.S. 462, 469 (2005). Under 18 U.S.C.

§ 3731, therefore, the government is without authority to

appeal. The appeal is therefore 

DISMISSED.

UNITED STATES v. BLANTON 1767