321 F.3d 790
UNITED STATES of America, Plaintiff-Appellee,
Stanley Dale PEARSON, Sr., Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 12, 2002.
Filed December 16, 2002.
Amended February 26, 2003.
James H. Locklin, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.
Ronald L. Chen, Assistant United States Attorney, Nancy B. Spiegel, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; Robert J. Timlin, District Judge, Presiding. D.C. No. CR-98-00049-RT-01.
Before NOONAN, WARDLAW and BERZON, Circuit Judges.
The opinion filed on December 16, 2002 [312 F.3d 1287], is amended as follows:
At 312 F.3d at 1289, before "AFFIRMED", insert the following paragraph:
Pearson urges us to apply the rule of lenity. Lenity cannot be invoked merely because a different reading of the statute is possible. The rule of lenity may apply only when a statute remains ambiguous after resort to canons of statutory construction. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). The statute must be read in the light of the principle preventing a criminal profiting from his crime. The principle is not ambiguous, and the principle is controlling. Consequently, the statute is unambiguous, leaving leniency without a place.
With this amendment, the petition for rehearing is DENIED. Judge Berzon would grant the petition for rehearing.