      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                       NO. 03-14-00807-CV

                                Paul Robert Saunders, Appellant

                                                  v.

                               Christi Antilley Saunders, Appellee

     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-FM-14-004475, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

                             MEMORANDUM OPINION

               Appellant filed a notice of appeal on December 23, 2014. However, the record reflects

that the district court subsequently granted a motion for new trial. “Granting a new trial restores

the case to its position before the former trial . . . .” See Tex. R. App. P. 21.9(b). Because there is

no longer a final judgment from which an appeal may be pursued, this Court lacks jurisdiction

over this appeal. See Tex. Civ. Prac. & Rem. Code §§ 51.012, .014; Lemann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001). Accordingly, we dismiss the appeal. See Tex. R. App. P. 42.3(f).

                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Dismissed for Want of Jurisdiction

Filed: May 8, 2015


2 Cal.App.2d 698 (1934)
THE PEOPLE, Respondent,
v.
PERRY DUKES et al., Appellants.
Crim. No. 2565.
California Court of Appeals. Second Appellate District, Division Two.
December 8, 1934.
 Keith R. Jensen and Jesse R. Shafer for Appellants.
 U.S. Webb, Attorney-General, and William F. Cleary, Deputy Attorney-General, for Respondent.
 Scott, J., pro tem.
 Defendants were charged with conspiracy to commit robbery, the information setting out nine overt acts prior to the robbery and, as a tenth overt act, the robbery itself. Ledbetter was also changed with a prior felony, robbery, conviction of which he admitted. In a previous case defendants had been charged with committing the identical robbery which is alleged as the tenth overt act in the instant case, and had been tried and acquitted on that charge. They entered pleas in this case of not guilty, former acquittal and once in jeopardy. The jury found against each defendant on the two latter pleas and convicted each of the crime of conspiracy to commit robbery. By their verdicts they fixed the degree of such crime as first degree as to Ledbetter and second degree as to Dukes. Defendants appeal from the judgment and order denying their motion for new trial. *700
 [1] It is contended that acquittal on the robbery charge in the earlier case precluded conviction on the conspiracy charge in this case. The first nine overt acts set out in the information before us are acts other than the act of robbery charged in the first case. Acquittal in that case would preclude further prosecution on the conspiracy charge only if the act of robbery was the sole over act set out in the latter information. (Oliver v. Superior Court, 92 Cal.App. 94 [267 P. 764].) [2] "The crime of conspiracy is a distinct offense from the actual commission of the crime forming the object of the conspiracy" (People v. Martin, 114 Cal.App. 392 [300 P. 130]), and the acquittal on the former charge is no bar to a successful prosecution in this case.
 [3] In support of their pleas of former jeopardy and acquittal, defendants offered in evidence a transcript of evidence taken at the trial of the earlier case. The trial court excluded the portion relating to matters occurring before the day of the robbery. While the testimony thus excluded did fortify the People's case on the robbery trial, it was no proper matter to place before the jury in the instant case, since it was not needed to identify defendants, the offense or the disposition of the earlier case.
 [4] The accomplices who testified were sufficiently corroborated by other evidence as required by Penal Code, section 1111. The witness Stephenson positively identified defendants as being perpetrators of the robbery, and defendant Dukes made a statement admitting the essential elements of the conspiracy charged. [5] "The entire conduct of the defendant may be looked to for the corroborating circumstances, and if from those circumstances the connection of the accused with the crime may fairly be inferred, the corroboration is sufficient." (People v. Shurtleff, 113 Cal.App. 739, at p. 743 [299 P. 92].)
 [6] The court instructed the jury to fix the degree in the event of a verdict against defendants. This was error. (People v. Clement, 97 Cal.App. 238 [275 P. 511].) The inclusion in the verdicts of the jury's conclusion as to the degree was surplusage, and did not prejudicially affect either defendant.
 Judgment and order affirmed.
 Stephens, P. J., and Crail, J., concurred.


                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3363

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

O NDRAY P ULLEY,
                                               Defendant-Appellant.

             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 06-CR-937—Virginia M. Kendall, Judge.

  A RGUED N OVEMBER 4, 2009—D ECIDED F EBRUARY 17, 2010

 Before C UDAHY, FLAUM, and E VANS, Circuit Judges.
  C UDAHY, Circuit Judge. Ondray Pulley pleaded guilty
to one count of wire fraud related to a scheme to
defraud the United Airlines Employees’ Credit Union
(UAECU). He was sentenced to 87 months’ imprisonment
and ordered to pay restitution. Pulley now appeals,
arguing that the government’s lack of candor at his co-
defendant’s sentencing proceedings caused the district
court to make significant procedural errors at Pulley’s
2                                              No. 08-3363

sentencing. Specifically, he contends that the district
court, having determined at the sentencing of his co-
defendant Anthony Anderson that Anderson was
credible, did not want to reverse this determination. In
Pulley’s opinion, the district court was therefore forced
into making an impossible finding at Pulley’s sentencing
that both Pulley and Anderson were accurately testi-
fying even though their stories conflicted. Pulley also
challenges the district court’s sentence as unreasonable.
  We affirm because the district court did not commit
procedural error in the course of Pulley’s sentencing
proceedings, and it appropriately considered the relevant
§ 3553(a) factors. It also did not err in sentencing Pulley
at the high end of the applicable Guidelines range.

                     I. Background
  Pulley defrauded credit unions for many years. The
scheme unfolded as follows. First, Pulley and Anderson
obtained the personal identifying information (social
security number and the like) of a Chicagoland area
United Airlines employee and opened an account at the
credit union UAECU. Next, Pulley used several other
victims’ identifying information to add joint owners to
the account. After securing counterfeit checks, Pulley
and Anderson deposited money into the account,
procured debit cards in the victims’ names, and trans-
ferred money drawn from the victims’ actual bank ac-
counts into the fraudulent UAECU account. Then,
Pulley and Anderson flew to Las Vegas (using pro-
ceeds from the account) to cash in on their scheme. They
No. 08-3363                                            3

advanced themselves more than $100,000 while visiting
various posh Las Vegas hotels and casinos, ate a few
meals and divided the proceeds—Anderson received well
less than half. The two were indicted in connection
with this scheme on December 13, 2006 on several mail
and wire fraud counts, and Anderson was also indicted
for a fraud on the Members’ Advantage Credit Union
(Members’ Advantage). Whether Pulley was involved
in the Members’ Advantage scheme became a factual
dispute addressed in a long series of evidentiary sen-
tencing hearings.
  By April 2007, Anderson had agreed to cooperate
with the government and met with government repre-
sentatives several times throughout the year. Pulley’s
case continued toward trial, and the government
planned to have Anderson testify against him. Anderson
eventually entered his plea in July (after several sched-
uling conflicts).
  Anderson was sentenced on November 13, 2007. At
sentencing, the government explained that, despite his
significant criminal history, Anderson’s life appeared to
be on the right track, and the government had not had
any difficulties with him. After noting his extensive
criminal history, the district court granted the govern-
ment’s § 5K1.1 motion based on Anderson’s cooperation,
his successful efforts to reform himself after suffering
from a serious medical condition while serving a
prior prison term, and on his prompt and forthright
cooperation in the government’s investigation. Signifi-
cantly for this appeal, the government did not mention
4                                                   No. 08-3363

to the district court the dispute regarding Pulley’s in-
volvement in the Members’ Advantage scheme, an
issue that called into question Anderson’s credibility, or
inform the court that it knew that Anderson had pur-
portedly attempted to contact a witness. As of the date
of Anderson’s sentencing hearing, the district court had
already received written filings prepared for Pulley’s
sentencing hearing detailing the dispute in question. At
the close of Anderson’s sentencing hearing, the district
court accepted the parties’ agreed-upon sentence of
38 months’ imprisonment as well as restitution, jointly
and severally with Pulley, in the amount of $190,000,
including amounts due to both UAECU and Members’
Advantage. Thirty-eight months was below the ap-
plicable Guidelines range of 57 to 71 months.
  Pulley had entered his plea of guilty on July 5, 2007.
His sentencing was originally scheduled for October 3,
2007, before Anderson’s, but was continued on multiple
occasions, initially at Pulley’s request.1 Prior to sen-
tencing, Pulley filed objections to the presentence in-
vestigation report taking responsibility for a fraudulent
scheme at Affinity Credit Union (Affinity) and denying
his involvement in the Members’ Advantage scheme. The
Affinity scheme had not been noted in the presen-
tence report and therefore was not part of the applicable
Guidelines range calculations. Without these amend-
ments, Pulley’s advisory Guidelines range was 57-71

1
  Typically, in the Northern District of Illinois, the cooperating
co-defendant is sentenced second.
No. 08-3363                                              5

months. Including the Affinity loss ($150,000) and ex-
cluding the Members’ Advantage loss ($120,000), the loss
amount from the UAECU scheme and other relevant
conduct totaled slightly over $400,000. Pulley’s amend-
ments raised his offense level two points and his sen-
tencing range to 70-87 months.
  At Pulley’s first sentencing hearing (where he was not
present, for unknown reasons), on November 14, the
district court highlighted the factual conflict between
the government and Pulley regarding his participation
in the Members’ Advantage scheme. The district court
reset the sentencing and allowed several more hearings
to permit the parties to present witnesses—including
Pulley and Anderson—regarding this issue. At the close
of the hearings, the district court determined that the
government had not met its burden to prove that Pulley
participated in the Members’ Advantage scheme given
the lack of hard evidence and the difference between
methods employed in that scheme and those used in
Pulley’s earlier schemes. It also found, however, that
Anderson’s testimony, implicating Pulley in the Members’
Advantage scheme, was credible based in large part on
the consequences of any possible perjury—including the
possible revocation of Anderson’s plea deal. The
district court reconciled its decision to find credible two
witnesses’ conflicting stories by explaining that it was
plausible that two con men with a long history together,
like Anderson and Pulley, could have gotten confused
6                                                    No. 08-3363

about events that occurred many years in the past.2 Con-
sistent with these findings, the district court amended
the restitution order entered at Anderson’s sentencing to
rescind Pulley’s joint liability. Further, the court declined
to accept the government’s position that Pulley should
be denied credit for acceptance of responsibility and
instead receive a two-level increase for obstruction of
justice for failure to admit his participation in the Mem-
bers’ Advantage scheme. Pulley was then sentenced to
87 months.

                   II. Standard of Review
  Whether the district court followed proper sentencing
procedure is a legal question reviewed de novo. United
States v. Smith, 562 F.3d 866, 872 (7th Cir. 2009). Factual
findings are reviewed for clear error. United States v.
Heckel, 570 F.3d 791, 793 (7th Cir. 2009). Likewise, we
defer to a district court’s determination of witness credi-
bility, which can virtually never be clear error. United
States v. Acosta, 534 F.3d 574, 584 (7th Cir. 2008). The
substantive reasonableness of a sentence is reviewed for
an abuse of discretion and a correctly calculated, within-
Guidelines sentence is entitled to a presumption of rea-
sonableness. See Rita v. United States, 551 U.S. 338, 347

2
  Pulley characterizes the district court’s findings of Pulley’s
and Anderson’s credibility as declaring a “tie.” The district court
does not use this language, and this characterization does not
fully reflect the district court’s reasons for finding both wit-
nesses credible despite their conflicting stories.
No. 08-3363                                                  7

(2007); United States v. Scott, 555 F.3d 605, 608 (7th Cir.
2009).

                      III. Discussion
  1.   The district court approached the sentencing hear-
       ing with an open mind.
  A district court judge must approach a sentencing
hearing with an open mind and rely on meaningful
consideration of the evidence presented at the hearing. See
United States v. Pless, 982 F.2d 1118, 1129-30 (7th Cir. 1992).
Likewise, the defendant has a due process right to be
sentenced on the basis of accurate information. See United
States v. England, 555 F.3d 616, 622 (7th Cir. 2009); United
States v. Jones, 454 F.3d 642, 652 (7th Cir. 2006). Thus, if
the defendant establishes that the sentencing court relied
on critical, inaccurate information when announcing
the sentence, a defendant may be granted the remedy
of resentencing. See Jones, 454 F.3d at 652; Simonson v.
Hepp, 549 F.3d 1101, 1107 (7th Cir. 2008) (discussing
sentencing in the habeas context). Evidentiary standards
are, however, relaxed at sentencing, and a sentencing
court may permissibly rely on information that has
“sufficient indicia of reliability to support its probable
accuracy.” See United States v. Rollins, 544 F.3d 820, 838
(7th Cir. 2008) (internal citations omitted).
  Even a district court’s unqualified statements about its
understanding of a defendant’s role in the conduct at
issue do not necessarily create reversible error, unless
the district court indicates that it has made up its mind
8                                               No. 08-3363

prior to receiving evidence. Compare Pless (holding
that the district court need not bring a tabula rasa to
issues fully aired at trial and relevant to sentencing
and, therefore, its strong statements before sentencing
did not deny the defendant a fair hearing) with
United States v. Schroeder, 536 F.3d 746, 753 (7th Cir.
2008) (holding that the defendant was denied a fair sen-
tencing hearing because the district court announced
its conclusion as to a relevant loss before receiving the
defendant’s evidence and appeared not to consider the
defense’s arguments).
  Pulley contends his case is more like Schroeder than
like Pless. We disagree. In the present case the district
court not only identified the factual conflict at the outset
of Pulley’s sentencing, but it held exhaustive hearings
and heard Anderson’s and Pulley’s testimonies to explore
the disputed facts. In the end, the district court found
Anderson credible not because it had already done so at
his sentencing, but because it found that his story was
essentially internally consistent and that he had no
motive to lie. The district court amply demonstrated
that it approached Pulley’s sentencing with an open mind.
  Pulley also contends that there was overwhelming
evidence that he did not participate in the Members’
Advantage scheme, implying that the district court was
wrong to find Anderson credible. As we noted above, a
district court’s credibility determinations are rarely
overturned and, in the present case, where the district
court provided sufficient reasons to find Anderson credi-
ble, we cannot agree that the district court erred.
No. 08-3363                                            9

 2.   Pulley has not provided sufficient evidence of
      the government’s breach of its duty of candor to
      require resentencing.
  Pulley further argues that the government breached its
duty of candor and therefore the case should be re-
manded. He notes that, at Anderson’s sentencing, the
government did not raise or deny a factual conflict as to
Pulley’s participation in the Members’ Advantage
scheme even though, at Anderson’s sentencing, the
district court found Pulley jointly liable for Anderson’s
fraud in that scheme. Also, the government did not
inform the court that Anderson had purportedly at-
tempted to contact a witness.
  It was, however, the government’s consistent position
at both sentencing hearings that Pulley participated in
the Members’ Advantage scheme, based, in part, on
Anderson’s testimony. Again, the district court found
that the government had not met its burden to prove
that Pulley participated in the Members’ Advantage
scheme. While the district court chose not to accept the
government’s version of events, that finding does not
imply that the government’s position was based on
known falsehoods, and Pulley has not provided evidence
sufficient to prove that the court’s findings were clear
error or, more importantly, that it relied on the govern-
ment’s version of events in sentencing him.
  In addition, Pulley contends that the government
breached its duty of candor by suggesting that Pulley
10                                                 No. 08-3363

only accepted responsibility for schemes for which the
government had hard evidence. Again, however, whether
Pulley only admitted schemes for which there was hard
evidence is a fact that the district court had adequate
opportunity to explore throughout the hearings and
therefore, whether or not the government breached its
duty of candor, the district court did not blindly rely on
the government’s purported contentions in sentencing
Pulley. In addition, whether Anderson contacted a wit-
ness is relevant to his sentencing, not Pulley’s, and
Pulley has not demonstrated that, even if the govern-
ment should have brought out this fact at Anderson’s
sentencing hearings, this error infected his own sen-
tencing. As discussed below, the district court properly
sentenced Pulley based on an individualized considera-
tion of the relevant statutory factors, not on irrelevant facts.
  Likewise, other courts have determined that a breach of
candor at a cooperating defendant’s sentencing is
unlikely to affect the outcome of the other defendant’s trial
when the information comes out at trial and relevant
witnesses are subject to cross-examination. United States
v. Casas, 425 F.3d 23, 40-41 n.21 (1st Cir. 2005) (declining
to apply the exclusionary rule to testimony by the cooper-
ating defendant at the complaining defendant’s trial).
Given the hearings that the district court conducted, and
the factors the district court actually relied upon during
sentencing, Pulley has not met his burden to prove
that, even if the government breached its duty of candor,
the sentencing court relied on impermissible factors
in sentencing him.
No. 08-3363                                                11

  3.   The district court’s sentencing procedure is sound
       and the sentence is substantively reasonable.
  Pulley also argues that the sentencing court erred by
failing to address his arguments related to consideration
of the 18 U.S.C. § 3553(a) factors and by imposing an
unreasonably high sentence.
  We note that the district court properly calculated the
applicable Guidelines range. Once the district court
determined that there was insufficient evidence of
Pulley’s participation in the Members’ Advantage scheme,
the court determined the offense level based on a base-
offense level of 7, an enhancement of 14 based on a loss
amount of more than $400,000 but less than $1 million, see
U.S.S.G. § 2B1.1 (2006), and a 2-level enhancement for
unlawful use of another’s identification, see U.S.S.G.
§ 2B1.1(b)(10)(C)(i). The district court subtracted 3 levels
for acceptance of responsibility and a timely plea, see
U.S.S.G. § 3E1.1(a)-(b), for a total offense level of 20. That
level, combined with an undisputed category VI criminal
history, produced a Guidelines imprisonment range of
70 to 87 months, with a statutory maximum of 30 years.
See 18 U.S.C. § 1343. The district court sentenced Pulley
to the high end of the Guidelines range.
  Pulley argues that the district court procedurally erred
by failing to consider several of his meritorious argu-
ments. Specifically, Pulley contends that the district court
failed to consider his difficult upbringing, his extraordi-
nary acceptance of responsibility and the unwarranted
disparity between his sentence and Anderson’s. We
12                                                 No. 08-3363

disagree.3 To comport with proper sentencing procedure,
the district court must review the § 3553(a) factors and
provide a record for us to review but it need not explicitly
articulate conclusions with respect to each factor. See
United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th
Cir. 2008). The court is not required to consider every
“stock” argument, but it must address the defendant’s
principal arguments. See United States v. Villegas-Miranda,
579 F.3d 798, 801 (7th Cir. 2009); United States v. Young,
590 F.3d 467, 474 (7th Cir. 2009) (explaining that a
district court may pass over, without discussion, argu-
ments that are made as a matter of routine); United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). “A
short explanation will suffice where the context and
record make clear the reasoning underlying the district
court’s conclusion.” United States v. Schroeder, 536 F.3d
at 755 (citing Rita, 551 U.S. at 358). We conclude that
the district court adequately considered Pulley’s
principal arguments.
  It addressed Pulley’s criminal history and re-
viewed the sentencing report that revealed his difficult

3
  Pulley also contends that the district court should have taken
into account the circumstances of his criminal history category
because his criminal history score was barely a category VI. As
the district court is required to consider a defendant’s history
and characteristics, 18 U.S.C. § 3553(a)(1), and the district
court fulfilled this requirement, there is no separate need to
address the defendant’s position within a particular history
category separately from the individualized assessment of the
defendant.
No. 08-3363                                               13

upbringing. At sentencing, the district court applauded
Pulley for his ability to avoid drug abuse despite having
close relatives with dependency issues. Given that the
district court was aware of Pulley’s difficult history,
heard his arguments that he did not believe his past
caused him to commit his crimes and then proceeded to
address Pulley’s sentence in the context of the § 3553(a)
factors, the district court did not err in failing to provide
a lengthy explanation for its decision that Pulley’s
history and characteristics did not merit him a lower
sentence.
  The district court also adequately provided reasons for
rejecting Pulley’s purportedly extraordinary acceptance
of responsibility. Pre-Booker, a district court could depart
from a guideline range for extraordinary acceptance
of responsibility, for example, if the defendant, against
his penal interest, provided significant, useful infor-
mation to the government. See United States v. Nguyen,
212 F. Supp. 2d 1008, 1031 (N.D. Iowa 2002) (defendant
helped exonerate an innocent co-defendant); United
States v. Rothberg, 222 F. Supp. 2d 1009, 1016-19 (N.D. Ill.
2002) (defendant significantly cooperated even though
there was initially no offer of a § 5K1.1). On the other
hand, if the defendant initially denies specific conduct
and the district court determines that it occurred as
testified to, the defendant cannot claim that he took
responsibility for his actions. See United States v.
Mancillas, 183 F.3d 682, 711 (7th Cir. 1999).
  By August 2007, Pulley admitted his role in the
Affinity scheme. Although the Affinity scheme was not
included as relevant conduct in the presentence investi-
14                                              No. 08-3363

gation report, the government was aware of the scheme
(it was listed in the government’s Version of Events, filed
in late July 2007) and aware that the scheme involved
several phony accounts opened under names Pulley
had used in previous schemes. At sentencing, the
district court declined to find that Pulley had extraordi-
narily accepted responsibility and noted that Pulley had
a long criminal history involving fraud and, based on
the evidence it received, concluded that Pulley had not
“learned his lesson. ”The district court provided a suffi-
cient explanation of its decision to reject the defendant’s
arguments regarding his extraordinary acceptance of
responsibility and likewise did not abuse its discretion
in deciding that his conduct did not rise to the level of
extraordinary acceptance.
  In addition, Pulley contends that the similarities
between him and Anderson suggest that Pulley’s sen-
tence should have been closer to Anderson’s 38 months.
While Pulley properly contends that § 3553(a)(6) does not
allow unwarranted sentencing disparities between co-
defendants, see, e.g., United States v. Statham, 581 F.3d
548, 556 (7th Cir. 2009); United States v. Bartlett, 567 F.3d
901, 908, 909 (7th Cir. 2009), warranted disparities are
allowed. Moreover, a district court that sentences
within the Guidelines necessarily gives weight and con-
sideration to avoiding unwarranted disparities. See
Bartlett, 567 F.3d at 908 (citing Gall v. United States, 552
U.S. 38, 54 (2007)). The two defendants began cooperating
at different times and, while the court determined
that Anderson had changed his lifestyle after his illness,
it concluded that Pulley had not similarly benefitted
No. 08-3363                                                      15

from his previous incarcerations. The district court ade-
quately considered Pulley’s arguments regarding unwar-
ranted sentencing disparities and did not abuse its dis-
cretion in rejecting them as bases for a lower sentence.
See Statham, 581 F.3d at 556 (holding that a co-defendant
differed from the defendant for sentencing purposes
because the co-defendant cooperated, pleaded and had
a less extensive criminal history).
  As noted above, if the district court provides an
adequate statement of reasons, consistent with § 3553(a),
for believing that the sentence is appropriate, and it is
within the Guidelines range, we presume the sentence
is substantively reasonable. See Rita, 551 U.S. at 347;
United States v. Turner, 569 F.3d 637, 640 (7th Cir. 2009).4

4
  Although neither party raised this point, we note that the
Statement of Reasons provides an incorrect lower bound to the
sentencing range and should be amended to accurately reflect
the range that was discussed during sentencing once the
district court made its determination as to the disputed facts.
Although we rarely exercise our powers to correct clerical
errors, see United States v. Bonner, 522 F.3d 804, 808-09 (7th Cir.
2008), we have done so in the past, see United States v. Boyd,
208 F.3d 638, 649 (7th Cir. 2000), vacated on other grounds, 531
U.S. 1135 (2001), and we see no need to go through the exercise
of remanding to allow the district court to direct its clerk to
correct the sentencing range. We therefore direct the clerk to
amend the Statement of Reasons to adequately reflect that the
applicable range was 70 to 87 months. See Fed. R. Crim. P.
1(a)(1) (“These rules govern the procedure in all criminal
proceedings in . . . the United States courts of appeals”), 1(b)(2)-
                                                     (continued...)
16                                                  No. 08-3363

Given the district court’s careful consideration of
Pulley’s arguments and its articulation of a sentence
based on the § 3553(a) factors, we have no reason to
conclude that it abused its discretion by rejecting several
of Pulley’s arguments and sentencing him to the high
end of the applicable guideline range. The district court
is therefore
                                                      A FFIRMED.

4
  (...continued)
(3) (“court” is defined to include a federal appeals court
judge), 36 (“After giving notice it considers appropriate, the
court may at any time correct a clerical error in judgment, order,
or other part of the record. . .”).

                             2-17-10


976 So.2d 1122 (2008)
HENDERSON
v.
STATE.
No. 5D08-198.
District Court of Appeal of Florida, Fifth District.
March 11, 2008.
Decision without published opinion. Affirmed.


839 F.2d 37
Vincent OLIVA, Plaintiff-Appellant,v.Kirby HELLER, Defendant-Appellee.
No. 724, Docket 87-2399.
United States Court of Appeals,Second Circuit.
Argued Feb. 3, 1988.Decided Feb. 5, 1988.

Vincent Oliva, plaintiff-appellant pro se.
Ellen B. Silverman, Asst. U.S. Atty. for S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty. for S.D.N.Y., Fredrick M. Lawrence, Asst. U.S. Atty., of counsel), for defendant-appellee.
Before LUMBARD, WINTER and ALTIMARI, Circuit Judges.
WINTER, Circuit Judge:

1
This appeal raises the question of whether the absolute immunity enjoyed by judges in the exercise of their judicial authority extends to the actions of law clerks who assist judges in carrying out judicial functions.  We hold that it does, and so affirm the district court.

FACTS

2
In 1982, plaintiff Vincent Oliva was convicted in the Eastern District of New York of conspiring to rob a bank and entering a bank with intent to commit larceny after a jury trial held before Judge Nickerson.  Judge Nickerson sentenced Oliva to two concurrent terms of five and ten years.  Oliva's conviction was affirmed on appeal.

3
Subsequently, Oliva filed a motion with Judge Nickerson to set aside and vacate the judgment of conviction pursuant to 28 U.S.C. Sec. 2255.  Judge Nickerson denied the motion on June 29, 1984, and we affirmed in an unpublished opinion on April 9, 1985.  On May 19, 1986, Oliva filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2241 (1982) in the Southern District of New York.  The case was assigned to Judge Haight, who found that, in essence, Oliva's Section 2241 petition was properly a motion to vacate sentence pursuant to Section 2255 and therefore could be brought only in the sentencing court.  Accordingly, Judge Haight transferred the case to the Eastern District where it was assigned to Judge Nickerson.  Judge Nickerson uses an "even-odd" system for assigning work to his two law clerks, in which one clerk is assigned cases with even docket numbers and the other clerk is assigned cases with odd docket numbers.  Because Oliva's original criminal case had an odd number, his Section 2255 action was assigned in July 1986 to Judge Nickerson's "odd" law clerk, Kirby Ann Heller.  Several months earlier, however, Heller had accepted a position with the United States Attorney's office for the Eastern District of New York, to begin upon the completion of her clerkship.  After accepting the offer of employment with the United States Attorney, she worked on cases in which the United States Attorney appeared only with the consent of all parties.  Whenever consent was withheld, the case would be assigned to her co-clerk.  In Oliva's case, the United States Attorney opposed the Section 2255 motion;  however, through an oversight, Oliva's consent to Heller's working on his case was neither sought nor obtained.  On July 18, 1986 Judge Nickerson denied Oliva's motion.

4
After learning of Heller's pending employment with the United States Attorney, Oliva sought reconsideration of his motion and Judge Nickerson's recusal from the case.  On August 26, 1986, Judge Nickerson recused himself, not because he believed there was any prejudice to Oliva, but because he wished to avoid "even the slightest appearance of impropriety."    The case was then reassigned to Judge Platt who interpreted Oliva's motion as an attack on Judge Nickerson's 1984 denial of Oliva's original Section 2255 motion, rejected that attack and dismissed all of Oliva's other claims on the merits.  Oliva then filed a motion to reconsider, arguing that he was seeking to vacate Judge Nickerson's July 18, 1986 order, not the June 29, 1984 order.  Judge Platt granted the motion to reconsider and then, assuming Oliva's interpretation to be correct, once again denied all of Oliva's claims on the merits.

5
On September 10, 1986, Oliva filed the present Bivens action, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Heller, claiming she had violated his rights under first and fifth amendments of the Constitution.  He sought, inter alia, $175,000 in compensatory damages, $5,000,000 in punitive damages, and injunctive and declaratory relief in the form of "judicial notice that all of [his] motions should be reconsidered in a manner consistent with Due Process and Equal Protection of the Laws."    In the district court he also sought appointment of counsel to help him pursue requested discovery and by letter moved to prevent the Justice Department from representing defendant Heller.  Heller moved to dismiss Oliva's complaint under Fed.R.Civ.P. 12(b)(6) on the grounds that as a judge's law clerk assisting the judge in the performance of his duties she was entitled to absolute immunity.  In the alternative, she moved for summary judgment.  The district court granted Heller's motion and dismissed the case.    Oliva v. Heller, 670 F.Supp. 523 (S.D.N.Y.1987).

DISCUSSION

6
Judges are granted absolute immunity from liability for acts taken pursuant to their judicial power and authority:

7
"not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences."    It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants.  His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption.

8
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (citations omitted);  cf. Forrester v. White, --- U.S. ----, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (nonjudicial acts of judge are not subject to absolute immunity).  The concern for the integrity of the judicial process underlying the absolute immunity of judges also is reflected in the extension of absolute immunity to "certain others who perform functions closely associated with the judicial process."    Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985).  Included among these others are prosecutors, administrative law judges and hearing examiners, grand jurors and witnesses in judicial proceedings.  Id.;  see Butz v. Economou, 438 U.S. 478, 511-13, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978);  Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976).

9
In determining which persons are covered by an extension of the immunity, the Supreme Court follows a " 'functional' approach," under which "[a]bsolute immunity flows not from rank or title or 'location within the Government,' but from the nature of the responsibilities of the individual official."    Cleavinger v. Saxner, 474 U.S. at 201, 106 S.Ct. at 501 (citations omitted);  cf. Butz v. Economou, 438 U.S. at 513, 98 S.Ct. at 2914 (role of hearing examiner or administrative law judge "functionally comparable" to that of judge).

10
Applying this analysis, courts have granted absolute immunity to court clerks where they were performing discretionary acts of a judicial nature.    See, e.g., Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir.1983), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984);  Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir.1981);  Denman v. Leedy, 479 F.2d 1097, 1098 (6th Cir.1973). In contrast to court clerks, who frequently perform ministerial functions, a law clerk generally performs discretionary acts of a judicial nature.  Indeed, a law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge's own exercise of the judicial function.  As described by the district court:

11
the work of judges' law clerks is entirely [judicial in nature].  Law clerks are closely connected with the court's decision-making process.  Law clerks are "sounding boards for tentative opinions and legal researchers who seek the authorities that affect decisions.  Clerks are privy to the judge's thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be."    Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir.1983).  Moreover, the work done by law clerks is supervised, approved, and adopted by the judges who initially authorized it.  A judicial opinion is not that of the law clerk, but of the judge.  Law clerks are simply extensions of the judges at whose pleasure they serve.

12
Oliva v. Heller, 670 F.Supp. at 526.  We believe the district court accurately described the role of the law clerk in the judicial process, and we therefore must agree that "for purposes of absolute judicial immunity, judges and their law clerks are as one."    Id.  Accordingly, we hold that the defendant, who was clearly assisting the judge in carrying out judicial functions, was covered by the doctrine of absolute immunity.

13
Having disposed of the only legal issue raised by this case, we note that Oliva's argument that the district court abused its discretion in refusing to appoint counsel for him is without merit.  Other than raising the legal question of whether law clerks are entitled to absolute immunity, his suit was palpably frivolous, lacking even the slightest chance of success on the merits.  See 28 U.S.C. Sec. 1915(d) (1982);  Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir.1986).  Suffice to add, there is nothing in the record to suggest that anything done by Judge Nickerson, or by his law clerk Kirby Ann Heller, or any failure on their part, in any way prejudiced the consideration of Oliva's petition.

14
Affirmed.


718 F.2d 1114
***U.S.v.Grimes
83-7156
UNITED STATES COURT OF APPEALS Eleventh Circuit
10/12/83

1
S.D.Ala.

AFFIRMED

*
 Fed.R.App.P. 34(a); 11th Cir.  R. 23

**
 Local Rule: 25 case


146 Cal.App.3d 1 (1983)
194 Cal. Rptr. 16
PETER P. FERRIS et al., Plaintiffs and Respondents; PAULA ARONSON et al., Plaintiffs and Appellants,
v.
LOS RIOS COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.
Docket No. 21288.
Court of Appeals of California, Third District.
August 15, 1983.
*4 COUNSEL
Van Bourg, Allen, Weinberg & Roger and Stewart Weinberg for Plaintiffs and Appellants and for Plaintiffs and Respondents.
Liebert, Cassidy & Frierson, Larry J. Frierson, Warren S. Kinsler and Melanie M. Poturica for Defendants and Appellants.
[Opinion certified for partial publication.[*]]
OPINION
BLEASE, J.
(1a) In this appeal we hold that part-time regular community college instructors are entitled to pro rata compensation equivalent to that paid full-time regular instructors for the same work.[1]
Six part-time instructors employed by Los Rios Community College District (Los Rios) sought a writ of mandate compelling Los Rios to grant them status as regular employees and pro rata pay at a rate equivalent to that paid full-time regular instructors. Two of them, Peter Ferris and Carl Coleman, were granted this relief and awarded attorney's fees of $980. The remaining instructors, Paula Aronson, Margery Brooks, Dennis Hock, and Mary Samaan were denied relief. Los Rios appeals contending the award of pro rata pay and attorney's fees to Ferris and Coleman is improper. The unsuccessful *5 instructors cross-appeal contending they are entitled to tenure and pro rata pay.[2]

Facts
The matter was tried by agreement of the parties on a deplorably skeletal stipulation of facts. Our review is confined to the facts adduced from this starveling fare.
Ferris and Coleman were voluntarily granted regular status by Los Rios. In the unpublished portion of this case we determine that Aronson, Brooks, Hock, and Samaan are also entitled to regular status.
Full-time employment at Los Rios is measured and compensated for on the basis of 15 hours of classroom instruction per week.[3] Prior to the 1980-1981 academic year regular part-time instructors were paid 78 percent of that paid full-time instructors for each classroom hour. In 1980-1981 the rate was increased to 100 percent. The written job descriptions vaguely differentiate between the duties of full-time and part-time instructors, the former including such tasks as "to assist students as faculty advisers" and "to perform assigned committee work."
In 1978 Los Rios determined that part-time instructors should be paid at the 78 percent pro rata rate. This determination was based on a perception that full-time instructors' work included matters "typically" not required of part-time instructors. Los Rios relied on two "studies." One "study" said: "Generally speaking, part time [sic] instructors perform duties ... which constitute 77% of the job content of a regular instructor" such as: curriculum development, extracurricular activity/club advising; college and departmental meetings; governance activities. The other study based the 77 percent figure on the "Average Effort Hours" derived from 5 colleges in which part-time instruction was said to have varied between 76 and 88 percent of that of a full-time teacher.
*6 The stipulation of facts summarizes testimony concerning tasks performed by each of the six instructors in their employment with Los Rios. Each participated in activities not directly connected with classroom instruction. Ferris participated in governance activities and departmental meetings. Aronson served on various governance committees and attended faculty and departmental meetings. Coleman was "assigned" to two governance committees. Brooks participated in faculty activities and departmental meetings. Samaan was "instructed" by the departmental chairman and the dean to attend departmental meetings, orientation and other consultation meetings with full-time instructors.

Discussion

I
Until 1977 the right of part-time community college instructors to pay prorated to that of full-time instructors was expressly addressed by Education Code section 13503.1.[4] In 1976, as part of the recodification of the Education Code[5] and its reorganization into separate divisions for community college districts (div. 7), and elementary and secondary districts (div. 2-4), the successor to section 13503.1 (current § 45025) was made applicable only to elementary and high school instructors. This case spans the period before and after the reorganization.

A.
Los Rios first claims its pay differential between part-time and full-time instructors was permitted by section 13503.1.
Section 13503.1 provided: "In fixing the compensation of part-time employees, governing boards shall provide an amount which bears the same ratio to the amount provided full-time employees as the time actually served by such part-time employees bears to the time actually served by full-time *7 employees of the same grade or assignment." In California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692 [170 Cal. Rptr. 817, 621 P.2d 856] (CTA v. San Diego), the Supreme Court held this provision applies to community college instructors and interpreted it to mean "the proper measure for apportioning part-time pay under section 13503.1 is the time actually spent on the job both inside and outside of the classroom." The court said: "This does not mean that the required number of hours for full-time instructors set by the districts may be used as the measure ... The reference to `time actually served' [in section 13503.1], in our view, requires consideration of the total amount of time spent by part and full-time teachers in connection with their teaching." (At p. 702.) The court observed part-time instructors at San Diego were not "expected to hold office hours, serve on professional committees or supervise student activities, all of which are required of full-time teachers." (At p. 696.) (Italics added.)
Los Rios claims the trial court erred in awarding Coleman and Ferris' pay prorated to the classroom time served by full-time instructors because the record compels the factual conclusion similar differential expectations obtained at Los Rios. We must disagree.
Los Rios relies upon Rooney v. San Diego Community College Dist. (1982) 129 Cal. App.3d 977 [181 Cal. Rptr. 464], modified 131 Cal. App.3d 1059a. In Rooney it was held the pay requirement of section 13503.1 "does not mandate compensating a part-time teacher for hours spent on voluntary tasks." (Id., at p. 983.) However, neither the Rooney opinion nor Los Rios' argument squarely confronts the meaning of the word "expected" as employed in CTA v. San Diego. In the absence of evidence part-time instructors were informed by Los Rios that participation in governance activities, departmental meetings, student advising, etc. was voluntary and failure to participate would not be considered in evaluating their service, the issue of the actual time they were "expected" to serve is open.
The record is ambiguous on the question of expectations. In this circumstance we are constrained by our limited scope of review on appeal to uphold the implied contrary finding of the trial court. (2) Even on a settled or stipulated record, as here, "[w]here the inferences are conflicting, it is for the trier of fact to resolve the conflict in the absence of a rule specifying the inference to be drawn." (McKinney v. Kull (1981) 118 Cal. App.3d 951, 956 [173 Cal. Rptr. 696].)
The plaintiffs testified to significant actual service of time in duties Los Rios says are typically performed by full-time faculty. This permits an inference contrary to Los Rios' factual claim. The inference is not impaired *8 by the fact Los Rios employed different job descriptions for full and part-time instructors. They are written in an obscure dialect of academic bureaucratise. Their use to determine the actual "expectations" communicated to Los Rios instructors is as flexible as those flamingos with which Alice tried to play croquet.
Los Rios also relies on a stipulation containing the opinions of Los Rios management personnel. This disembodied testimony relates that Los Rios part-time instructors perform duties constituting only 77 percent of the "job content" of full-time instructors. The bases for these opinions are "studies" which state nothing more than this same conclusion. They lack a foundation essential to their credibility. Although, by the parties' stipulation, the lack of a foundation is not a bar to admissibility, it deprives the opinions of their probative value. The unsupported conclusions are insufficient to compel the trier of fact to adopt them as fact.
(1b) In view of these conflicting inferences, we are bound to conclude that the implied finding that part-time instructors at Los Rios were expected to perform the same amount of work per assigned hour of classroom instruction as do full-time instructors is supported by substantial evidence.

B.
Los Rios also claims the right to pro rata pay terminated when the Education Code was recodified and reorganized in 1976 because section 13503.1 was not replicated in the title of the code pertaining to community colleges.
The recodification reenacted section 13503.1 as current section 45025 in title 2, division 3 which applies to elementary and secondary education. Unlike most provisions of the prior code, section 13503.1 was not reenacted in a paired set, once in division 3 and once in division 7, which applies to community colleges. Los Rios makes two claims about this differential action.
(3) First, it says current section 45025 applies only to instructors in grades one through eight and high school. We agree. This conclusion is compelled by the language of section 45025, if not by its singular placement.[6]
*9 (1c) The stronger claim is that the Legislature intended to extinguish whatever rights part-time instructors had to pro rata pay. The premise is that section 13503.1 (and now current § 45025) was the exclusive source of such rights. The premise is incorrect. There are statutory sources of the principle of pro rata pay exclusive of section 13503.1. These sources were replicated in title 3, division 7, applying to community colleges, as part of the reorganization of the Education Code.
(4) Los Rios relies upon current section 87801 as the authorization for its discretion to determine the salaries of its employees. It provides: "The governing board of a community college district shall fix and order paid the compensation of persons in community college service requiring certification qualifications employed by the board unless otherwise prescribed by law." Los Rios asks us to believe this section gives it unlimited discretion over the salaries of part-time instructors, once freed of the constraints of section 13503.1. It does not.
The section is the offspring of section 13502[7] and is a lineal descendant of section 13802 of the Education Code of 1943 (Stats. 1943, ch. 71, p. 577), derived in turn from School Code section 5.731.[8] The salary setting discretion of section 13502 and its predecessors has been consistently subordinated to a "principle of uniformity of treatment as to salary for those performing like services with like experience." (Fry v. Board of Education (1941) 17 Cal.2d 753, 757 [112 P.2d 229]; also see Rible v. Hughes (1944) 24 Cal.2d 437, 444 [150 P.2d 455, 154 A.L.R. 137]; Heinlein v. Anaheim Union H.S. Dist. (1950) 96 Cal. App.2d 19, 22 [214 P.2d 536]) (5) "[T]here are limitations on the power of boards of trustees to change salaries of permanent teachers. One of the `legal consequences' [of permanent status] is that the fixing of salaries must not be discriminatory, arbitrary *10 or unreasonable. The [cited] cases all so qualify the general power of the administrative agencies to fix the salaries of permanent teachers. Because of this qualification it necessarily follows that there must be a comparison with the salaries of other teachers or salaries of previous years. If this could not be done, the qualification would be meaningless." (Kacsur v. Board of Trustees (1941) 18 Cal.2d 586, 592 [116 P.2d 593]; italics added.)
This principle of equal pay was implied from a statutory matrix of rights accorded tenured faculty. The principle was made expressly applicable to part-time certificated employees in section 13503.1.[9] We need not look far to find an identical principle of equal pay for part-time community college instructors. Current division 7 shows a specific legislative concern for the pro rata equality of salaries of full-time and part-time community college instructors. Thus, current section 87483, subdivision (e) provides that when a full-time certificated employee is permitted to reduce his workload from full-time to part-time duties the "employee shall be paid a salary which is the pro-rata share of the salary he would be earning had he not elected to exercise the option of part-time employment...." Current section 87815 provides in part that a certificated employee "who serves less than a full school year shall receive as salary ... [which] bears the same ratio to the established annual salary for the position as the number of working days he serves bears to the total number of working days plus institutes in the annual school term...." It also provides an instructor "who serves a complete semester shall receive not less than one-half of the established annual salary for the position." (Compare current § 87816.)
(1d) These sections evince an unmistakable legislative policy that part-time employees shall receive pro rata pay equivalent to that paid full-time employees for the same work.
We apply that principle to this case. We found implicit in the judgment that part-time instructors at Los Rios were "expected to" serve an amount of time outside the classroom proportionally equivalent to that expected of full-time instructors. Given this premise there is no reason to validate the maintenance of a pay differential predicated solely on the part-time status of the instructors.[10]

*11 II
(6) The remaining area of dispute concerns the award of attorney fees to Coleman and Ferris pursuant to Government Code section 800. Los Rios contends section 800 has no application because the instructors did not seek review of an award, finding, or other determination of an "administrative proceeding." We agree.
Government Code section 800 provides for an award of reasonable attorney fees (not to exceed $1,500) to a complainant who prevails: "In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law...." (Italics added.) The terms "award, finding, or other determination" and the term "administrative proceeding" imply it is not every decision of an administrative official which, on judicial review, may occasion an award of attorney's fees. We concur in the decision in Wilkerson v. City of Placentia (1981) 118 Cal. App.3d 435, 444 [173 Cal. Rptr. 294] (accord Williams v. Department of Water & Power (1982) 130 Cal. App.3d 677, 685 [188 Cal. Rptr. 868]) that Government Code section 800 is inapplicable except where review is sought of action taken as a result of an administrative hearing required or provided by law. There was none here.
The remaining issue considered in this appeal does not warrant publication under California Rules of Court, rule 976. Accordingly, it is discussed in an unpublished opinion simultaneously filed. (Cal. Rules of Court, rule 976.1.)

Disposition
Appellant and respondent instructors shall recover their costs on appeal. The award of attorney's fees to counsel for the instructors is reversed. The denial of regular status and back pay to Aronson, Brooks, Hock, and Samaan is reversed and the case is remanded with instructions that the writ also issue compelling Los Rios to grant them tenure and appropriate pro rata pay. With these exceptions the judgment is affirmed.
Regan, Acting P.J., and Evans, J., concurred.
The petition of defendants and appellants for a hearing by the Supreme Court was denied November 23, 1983.
NOTES
[*]   See, post, page 11.
[1]  Throughout this opinion the terms tenured, regular, and permanent are used interchangeably. (See current Ed. Code, § 87602, subd. (b).)
[2]  The action was initiated in June of 1976. The complaint names 29 part-time instructors, an association and a union local as plaintiffs. It is styled as a class action and requests classification of Los Rios' part-time instructors as probationary or permanent personnel pursuant to the named plaintiffs' legal theory of tenure. The complaint requests the district be ordered to provide compensation for probationary and permanent part-time instructors proportionally comparable to that provided full-time instructors "from the beginning of this proceeding henceforth." Permission to maintain the suit as a class action was denied by the trial court on October 26, 1976. Four and one-half years after the complaint was filed the six instructors named above and the union local substituted in new counsel and noticed a hearing on the requested writ.
[3]  Laboratory instruction is credited at the rate of one and one-half hours of laboratory instruction equals one hour of lecture instruction.
[4]  The statute provided: "Any person employed by a district in a position requiring certification qualifications who serves less than the minimum schoolday as defined in Sections 11003 to 11008, inclusive, or 11052 may specifically contract to serve as a part-time employee. In fixing the compensation of part-time employees, governing boards shall provide an amount which bears the same ratio to the amount provided full-time employees as the time actually served by such part-time employees bears to the time actually served by full-time employees of the same grade or assignment. This section shall not apply to any person classified as a temporary employee under Section 13337 and 13337.5, or any person employed as a part-time employee above and beyond his employment as a full-time employee in the same school district."
[5]  Statutes 1976, chapter 1010. The operative date of the revision was April 30, 1977. All statutory references are to the former Education Code unless otherwise noted. These provisions were in effect at the time of the complaint and during most of the pertinent time period. References to the revised Education Code are denoted as "current section."
[6]  Section 13503.1 used terms which applied to employees of both community college districts and elementary and high school districts. It referred to sections which embraced community college instructors. However, section 45025, while reenacting the equal pay provisions, changed these references to limit its application to elementary and high school instructors. It provides: "Any person employed by a district in a position requiring certification qualifications who serves less than the minimum schoolday as defined in sections 46112 to 46116, inclusive, or 46141 may specifically contract to serve as a part-time employee." Sections 46112 to 46116 and 46141 refer, variously, only to instructors in grades kindergarten through eight and high school. The inference is compelled that the part-time employees which are the subject of the section are those employed in schools containing such grades.

The instructors argue that notwithstanding the singular replication of section 13503.1 in the division applicable to elementary and secondary education, it should be read in light of current section 3 which instructs that: "[t]he provisions of this code, insofar as they are substantially the same as existing statutory provisions relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments." This provision is unavailing, however, because section 45025 is not "substantially the same" as section 13503.1 on the crucial point of its applicability to community college instructors.
[7]  Section 13502 provided: "[t]he governing board of any school district shall fix and order paid the compensation of persons in public school service requiring certification qualifications employed by the board unless otherwise prescribed by law."
[8]  This venerable lineage predates considerably that of section 13503.1 (see Stats. 1967, ch. 1224, p. 2990) as well as the advent of community colleges.
[9]  Section 13503.1 was not redundant. It made explicit what was implied as statutory policy and clarified its applicability to nontenured and part-time employees. It made the principle expressly inapplicable to part-time instructors employed as "a full-time employee in the same school district." Because section 13503.1 no longer applies to community colleges, its restrictions upon the principle of pro rata pay no longer apply.
[10]  Los Rios also argues the period of retroactive pay must be limited by the statute of limitations. The only teacher to whom the point has application is Coleman. He makes no contrary argument. We deem the limitation implicit in the judgment.


860 F.2d 1086
De Youngv.O'Brien
NO. 88-2239
United States Court of Appeals,Eighth Circuit.
SEP 06, 1988
Appeal From:  N.D.Iowa

1
DISMISSED.


65 Wn. App. 845 (1992)
829 P.2d 1145
THE STATE OF WASHINGTON, Respondent,
v.
STEVE HALSTIEN, Appellant.
No. 28870-9-I.
The Court of Appeals of Washington, Division One.
May 26, 1992.
Mary Jane Ferguson of Washington Appellate Defender Association, for appellant.
*847 Norm Maleng, Prosecuting Attorney, and Terri Luken, Deputy, for respondent.
WEBSTER, A.C.J.
Steven M. Halstien, a juvenile, was convicted of second degree burglary with a finding of sexual motivation. He appeals the finding of sexual motivation, contending that the trial court erred in admitting the victim's testimony regarding her prior contacts with him and a police officer's testimony that a liquid found on a picture frame in the victim's house could have been semen. He asserts that these cumulative errors deprived him of a fair trial on the issue of sexual motivation, that the evidence is insufficient to support a finding of sexual motivation, and that the sexual motivation statute is unconstitutionally vague and overbroad. He further asserts that the court erred in finding that a standard range sentence would effectuate a manifest injustice. We affirm.

FACTS
Steven M. Halstien began delivering newspapers to Cindy Bienz in June of 1989. He collected for the newspaper at her house once a month, and Bienz saw him in the neighborhood on his bike or skateboard about three times a week. Bienz asked Halstien to stop delivering the paper in April of 1990 because she did not read it every day and Halstien "gave [her] the creeps when he came to the door". According to Bienz, Halstien asked "inappropriate" questions about her Porsche, powerboat, clothes, stereo, and house, and hung around when she was having a Fourth of July party.
A week before the burglary, on a Friday night between 9:30 and 10 p.m., Halstien went to Bienz's house to collect for the paper. When Bienz came to the door, she had watery or bloodshot eyes, was wearing an oversize sweater, and did not have any shoes on. Halstien asked Bienz if he had woken her up and whether she had to get dressed to come to the door. She testified that she thought his questions were inappropriate and that they made her feel "very uncomfortable". Nonetheless, Bienz did not find it odd for *848 Steven to collect so late because she was rarely home in the evening and Halstien had been unable to collect for 2 months.
At 7:30 a.m. on the morning of November 3, 1990, Bienz awoke to noise, called out, and heard the upstairs window open. She called a friend and the police. Police officers determined that entry had been gained through a bathroom window. Muddy footprints were found in the bathroom, the family room, and in Bienz's bedroom. In the loft area, an orderly box of general photos taken of Bienz and others had been disturbed. Some of the photos were dropped on the floor, and others were in "specific little piles on the chair". One framed photograph of Bienz and her sister had been moved from the kitchen to the sofa of the living room. A vibrator and a box of condoms were missing from Bienz's bedroom. Although there were valuable items in the house, including cash, jewelry, and electronics, no other items were taken. Bienz also testified that beginning in March of 1990, she heard noises after midnight, and in the morning her fence gate would be open.
Officer Shawn T. Riley testified that he dusted for fingerprints on the framed photograph, and noticed a liquid on the frame which could have been semen. He also testified that it could have been something else. The court admitted his opinion over defense counsel's objection.
Detective John Haslip, who investigated the incident, found the vibrator broken open in a park located in back of Bienz's residence. He also found the empty condom box in a trash can. When Detective Haslip contacted Halstien, Halstien admitted that he burglarized the house, but said the burglary had occurred the evening before between 8 and 10 p.m. He stated that he broke into the house to look for money out of anger because Bienz owed him money for the papers. He admitted taking the vibrator and condoms from the bedroom, stating that he did not know why he took them. Halstien also stated that he threw the vibrator *849 against a tree, kept the condoms, and threw the box away. His description of the events to Detective Haslip indicated that he made "several wanderings through the house", and had been in the house 15 to 30 minutes before Bienz awoke. He made no sexual comments regarding the incident.
The trial court determined that Halstien committed the offense of second degree burglary with sexual motivation. At the disposition hearing, the court found that sentencing Halstien in the standard range would result in a manifest injustice, and sentenced him to a maximum term of 104 weeks at the Department of Juvenile Rehabilitation.

DISCUSSION
Halstien asserts that the trial court erred in admitting the victim's testimony regarding her prior contacts with him on the basis that the testimony constituted impermissible character evidence, was irrelevant, and was unfairly prejudicial. In particular, Halstien objected to the victim's testimony that Halstien "gave [her] the creeps when he came to the door and collected", because he would ask "inappropriate questions", make comments about her, what she was wearing or doing, or about her stereo or house. He also objected to her testimony that he came to collect a week before the burglary around 10 p.m. at night, asking if he had woken her and whether she had to get dressed to come to the door, and that his questions made her "very uncomfortable".
[1] ER 404(b) states:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Any evidence admissible under ER 404(b) may be excluded under ER 403 if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Robtoy, 98 Wn.2d 30, 42, 653 P.2d 284 (1982). The appellate court *850 reviews the trial court's rulings for abuse of discretion. Robtoy, at 42.
[2] We hold that the trial court correctly found that the prior contacts did not constitute prior bad acts under ER 404(b). Since the prior contacts did not constitute prior bad acts, the trial court was not required to state on the record the purpose for admitting the evidence. See State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986). The trial court apparently found the prior contacts and Bienz's impressions based on those contacts probative of whether Halstien committed the burglary for the purpose of sexual gratification and of his identity as the one who committed the crime. See findings of fact 7, 9. We agree that Bienz's testimony was probative of whether Halstien committed the burglary with the purpose of sexual gratification because it corroborated evidence gathered from the burglary itself of Halstien's personal interest in Bienz. We also agree that the trial court did not abuse its discretion in failing to rule that the probative value of these prior contacts was outweighed by the danger of unfair prejudice.
Halstien further asserts that the trial court erred in admitting as opinion testimony an officer's statement that the substance on a picture frame in the victim's house might have been semen. Since the officer did not know with any certainty that the substance was semen, the probative value of the testimony was outweighed by the danger of unfair prejudice under ER 403 and the trial court abused its discretion in admitting this evidence.
[3] An evidentiary error not of constitutional magnitude requires reversal only if the error, within reasonable probabilities, materially affected the outcome of the trial. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). We find nothing in the findings and conclusions indicating that the trial court gave the officer's statement any weight. Moreover, the finding of sexual motivation did not depend upon the improperly admitted evidence. See infra. Therefore, *851 we are confident that the improperly admitted evidence did not affect the outcome of the trial.[1]
[4] We next address Halstien's assertion that the evidence was insufficient to support a finding of sexual motivation. RCW 13.40.135 requires prosecutors to file an allegation of sexual motivation whenever the allegation is supported by sufficient credible evidence. "Sexual motivation", which is an aggravating factor under RCW 13.40.150(3)(i)(v), means that sexual gratification was one of the defendant's purposes in committing the crime.[2] RCW 13.40.020(21). The State has the burden of proving beyond a reasonable doubt that sexual motivation was present at the time the offense was committed. RCW 13.40.135(2). The standard employed in challenging the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential element beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
Here, Halstien surreptitiously entered the victim's home by breaking and crawling through a bathroom window, explored her house, took a vibrator and a box of condoms from a nightstand next to the bed where she was sleeping, examined several photographs of her, and did not take any of her valuable personal property. These facts alone suggest that sexual gratification was one of Halstien's purposes in committing the burglary. In addition, the nature of his prior contacts with Bienz indicated that he had, at minimum, a strong personal interest in her. We hold that the trial court did not abuse its discretion in finding that Halstien was obsessed with Bienz and had a desire to be in her presence. *852 Regardless of whether Halstien's obsession was properly characterized as "abnormal", or whether his lurking is indicative of sexual motivation, the evidence is sufficient to permit a rational trier of fact to conclude beyond a reasonable doubt that sexual gratification was one of Halstien's purposes in committing the burglary.[3]
[5, 6] We next address Halstien's assertion that the sexual motivation statute is unconstitutionally overbroad or vague because it criminalizes one's private thoughts in violation of one's rights to privacy and free speech and does not criminalize any specific conduct. A law is overbroad if it "sweeps within its prohibitions" activities that are constitutionally protected. Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989). A statute is "void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." O'Day v. King Cy., 109 Wn.2d 796, 810, 749 P.2d 142 (1988). The test for evaluating the vagueness of legislative enactments is whether the enactment provides adequate notice of the conduct prohibited and contains standards to prevent arbitrary enforcement. State v. Maciolek, 101 Wn.2d 259, 264, 676 P.2d 996 (1984). A statute is not unconstitutionally vague simply because a person cannot "predict with complete certainty the exact point at which his [or her] actions would be classified as prohibited conduct." Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). Nor is it unconstitutionally vague because of possible disagreement on its application. See Eze, at 27.
[7] Here, the applicable statute requires that the State prove "beyond a reasonable doubt that the juvenile committed the offense with a sexual motivation." (Italics ours.) RCW 13.40.135(2). It further states that the "court shall *853 make a finding ... of whether ... the sexual motivation was present at the time of the commission of the offense." (Italics ours.) RCW 13.40.135(2). Inherent in this subsection is the requirement that the finding of sexual motivation be based on some conduct forming part of the body of the underlying felony. The statute does not criminalize sexual motivation. Rather, the statute makes sexual motivation manifested by the defendant's conduct in the course of committing a felony an aggravating factor in sentencing. We therefore conclude that the statute is neither overbroad nor vague.
[8] Lastly, we address Halstien's assertion that the trial court erred in imposing a sentence of 104 weeks. When a juvenile defendant is found to be a middle offender, a disposition outside the standard range may be imposed only if the trial court concludes that a standard range sentence would result in manifest injustice. RCW 13.40.160(4)(c). A disposition effectuates manifest injustice if it "would impose a serious, and clear danger to society in light of the purposes of this chapter". RCW 13.40.020(12). The purposes of the Juvenile Justice Act of 1977 are listed in RCW 13.40.010(2) and include the following:
(a) Protect the citizenry from criminal behavior;
....
(c) Make the juvenile offender accountable for his or her criminal behavior;
(d) Provide for punishment commensurate with the age, crime, and criminal history of the juvenile offender;
....
(f) Provide necessary treatment, supervision, and custody for juvenile offenders;
We are mindful of State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991), in which the Supreme Court recently held that future dangerousness is not a factor justifying imposition of an exceptional sentence under the Sentencing Reform Act of 1981 (RCW 9.94A). In view of RCW 13.40.020(12), this rule does not apply under the Juvenile Justice Act of 1977. Moreover, we note that under the Sentencing Reform Act of 1981, a felony with a finding of sexual motivation is a sex offense. RCW 9.94A.030(29)(b).
*854 Review of a disposition outside the standard range is governed by RCW 13.40.230(2), which states:
To uphold a disposition outside the standard range, or which imposes confinement for a minor or first offender, the court of appeals must find (a) that the reasons supplied by the disposition judge are supported by the record which was before the judge and that those reasons clearly and convincingly support the conclusion that a disposition within the range, or nonconfinement for a minor or first offender, would constitute a manifest injustice, and (b) that the sentence imposed was neither clearly excessive nor clearly too lenient.
RCW 13.40.230(2) sets forth a 3-part test. State v. P, 37 Wn. App. 773, 686 P.2d 488 (1984). First, "the reasons given by the trial court must be supported by the record".[4] Second, "those reasons must clearly and convincingly support the disposition". Third, "the disposition cannot be too excessive or too lenient." State v. P, at 777 (quoting State v. Rhodes, 92 Wn.2d 755, 760, 600 P.2d 1264 (1979)).
Here, Halstien's standard range was 5 to 10 days of detention, 24 to 40 hours of community service, 3 to 6 months of community supervision, and up to a $25 fine. The trial court found that this sentence would effectuate a manifest injustice because Halstien presented a "clear and present danger to the community." The conclusion that Halstien presented a "clear and present danger" rests on the trial court's findings that Halstien committed another second degree burglary less than 3 months after the one in question, exhibited "obsessive, predatory behavior" and presented "a high risk to reoffend" absent intervention.
Halstien asserts that the finding of "obsessive, predatory behavior" is not supported by the record because it rests on improperly admitted evidence. We have already determined that admitting evidence of Halstien's prior contacts with the victim was proper under ER 404(b) and ER 403. See supra. The victim was asleep during the burglary and Halstien was in her home for approximately 10 to 15 minutes looking at photographs of her and taking only very personal items. *855 Halstien's obsession with the victim is further manifested by comments made to her over a period of time about her or her belongings, by Halstien's admission to the evaluator that he was sexually attracted to the victim before the incident occurred, and by Halstien's sexual deviancy evaluation, which indicated "a moderate degree of sexual obsession". As to predatory conduct, in the months preceding the burglary, the victim began to notice screens missing from the exterior of the house, mostly in the area of her bedroom. She would find the screens with burn holes in them near the window latches. Halstien admitted that he burned holes in the screens at the time of the burglary. The evidence in total suggests that he had been stalking the victim in her home for months prior to the actual burglary. We conclude that the evidence in the record supports the trial court's finding of "obsessive, predatory behavior".
Halstien also asserts that the record does not support that evaluator's finding that he presented a high risk to reoffend. Although a psychologist indicated based on his review of Halstien's responses to one test that he "may have a high potential for aggression due to his impulsivity, low self-worth, depression and poor judgment" (italics ours), the evaluator nevertheless concluded based on the results of several other tests that Halstien presented a high risk to reoffend because of his pattern of denial, the predatory nature of the offense, his frequent possession of knives or sticks, his emotional instability, and his continued involvement in criminal behavior. The evaluator specifically found Halstien at a high risk to commit further sex crimes. We conclude that the trial court's finding that Halstien presented a high risk to reoffend is supported by substantial evidence.
Halstien further asserts that the reasons given by the trial court do not support the conclusion that a sentence in the standard range would result in a manifest injustice. Defense counsel specifically attacks the trial court's statement that a commitment of 104 weeks at the Department of Juvenile Rehabilitation was appropriate, in part because *856 "[t]he respondent has a right to treatment, and the failure of the State to provide him adequate and appropriate treatment would be in violation of the statute." The finding of manifest injustice is clearly and convincingly supported by the reason that Halstien presented a "clear and present danger" to the community. The trial court specifically found that Halstien was not a good candidate for community-based treatment under the special sex offender disposition alternative (RCW 13.40.160(5)) because of the danger he presented to society. Imposing a sentence long enough to provide necessary treatment not only furthers the objective of protecting society, but also is a stated objective of the Juvenile Justice Act of 1977. See RCW 13.40.010. We hold that the reasons support the finding of manifest injustice.
[9] A sentence is "clearly excessive" only when it cannot be justified by any reasonable review of the record. State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188, review denied, 113 Wn.2d 1007 (1989). Here, the sentence is justified by Halstien's danger to the community and his need for treatment in a secure setting and is not clearly excessive.
The judgment is affirmed.
COLEMAN and FORREST, JJ., concur.
Review granted at 120 Wn.2d 1012 (1992).
NOTES
[1]  In view of our holding that the trial court made only one evidentiary error, we reject the defense counsel's argument that cumulative errors denied Halstien due process of the law.
[2]  We reject the defense counsel's argument that the meaning of sexual gratification should be ascertained by reference to indecent liberties cases. The offense of indecent liberties includes the element of "sexual contact", which is not essential to a finding of sexual motivation. RCW 9A.44.100(1).
[3]  The defense counsel asserts that the trial court abused its discretion in entering findings of fact 9(a)-(f) and 7(c)-(d) regarding Halstien's sexual motivation. We decline to address whether the trial court abused its discretion in making any of these specific findings that were not discussed in appellant's brief.
[4]  We reject the defense counsel's argument that the evidence must support the reasons given beyond a reasonable doubt.


15 F.3d 1089NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Ricardo M. SOMOZA, Plaintiff-Appellant,v.Charles D. MARSHALL, Warden, Defendant-Appellee.
No. 93-16160.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 4, 1994.*Decided Jan. 12, 1994.

Before:  REINHARDT, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

1
MEMORANDUM**

2
Ricardo M. Somoza, a California state prisoner, appeals pro se the district court's dismissal of his civil rights action as frivolous under 28 U.S.C. Sec. 1915(d).  We have jurisdiction under 28 U.S.C. Sec. 1291.  We review for abuse of discretion,  Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992), and affirm.

3
Somoza's complaint, filed as a petition for writ of habeas corpus, alleged that officials at Pelican Bay State Prison violated his eighth and fourteenth amendment rights by placing him in the general population with prisoners who are hostile toward him, despite his documented need for protective custody.  Somoza alleged he was forced to assault a fellow inmate so that he would be "locked up" for his own safety.  He sought transfer to another facility with protective custody housing and rescission of the disciplinary action taken in response to the assault.

4
The district court construed Somoza's petition as a complaint under 42 U.S.C. Sec. 1983, and sua sponte dismissed it under section 1915(d) because Somoza litigated the same claims against the same party in a state habeas proceeding, Somoza v. Marshall, No. 92-314-X, slip op. at 1 (Cal.Super.Ct. Nov. 17, 1992).

5
A petition for writ of habeas corpus that challenges living conditions and disciplinary measures may be construed as a section 1983 complaint.   Wilwording v. Swenson, 404 U.S. 249, 251 (1971).  The district court may sua sponte dismiss the action as frivolous when a previous judgment precludes relitigation of the same issues.   Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.1984).

6
A state habeas judgment is res judicata in a section 1983 action when state law would give the judgment preclusive effect.   Migra v. Warren City School Dist., 465 U.S. 75, 81 (1984);   Piatt v. MacDougall, 773 F.2d 1032, 1034-35 (9th Cir.1985) (en banc).  In California, a final judgment is res judicata if it is intended to dispose of the merits of a claim.   Olwell v. Hopkins, 28 Cal.2d 147, 149-50 (1946) (in bank).

7
The record in this case demonstrates that Somoza raised the same issues and sought the same relief against the same party in his state habeas petition, which was denied on the merits.1  In fact, he framed his complaint below as a request for review of the state court's decision.  In these circumstances, the district court correctly dismissed the action as frivolous based on the doctrine of res judicata.   See Piatt, 773 F.2d at 1034-35;   Franklin, 745 F.2d at 1230;   Olwell, 28 Cal.2d at 149-50.

8
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4.  Accordingly, Johnson's request for oral argument is denied

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 The California Superior Court denied Somoza's petition on November 17, 1992, for failure to show an abuse of administrative discretion in his housing assignment.  The California Court of Appeal affirmed on December 9, 1992, and the California Supreme Court denied review on February 10, 1993