United States v. Christensen, No. 11-10562 (9th Cir. 2013)
Annotate this CaseDefendant pled guilty to one count of wire fraud. On appeal, defendant challenged his sentence of 60 months in prison. The court concluded that the district court did not commit procedural error by engaging in impermissible double-counting where the district court was not prohibited from considering the extent to which the Guidelines did not sufficiently account for the nature and circumstances of defendant's offense. Further, the court had no basis for questioning whether the district court did, both in word and in fact, award defendant a 3-level reduction for acceptance of responsibility. The court also concluded that the district court did not plainly err as to defendant's remaining contentions that he failed to preserve. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed a sentence imposed following the defendant’s guilty plea to wire fraud in connection with a real estate investment scheme. The panel held that the record supports the district court’s conclusion that the Sentencing Guidelines did not properly take into account the harm caused by the egregiousness of the defendant’s conduct, and that this conclusion did not constitute impermissible double-counting. Regarding the defendant’s contention that the district court improperly discounted the defendant’s acceptance of responsibility, the panel held that the fact that the defendant received a three-level Guidelines reduction for acceptance of responsibility but ended up with an above-Guidelines sentence is insufficient to leave the panel with a definite and firm conviction that the district court erred. Reviewing for plain error, the panel deemed unavailing unpreserved contentions that the district court committed procedural error by among other things (1) failing to resolve factual conflicts in the presentence report regarding victim impact and loss amounts; (2) failing to provide advance notice of the precise grounds for an upward variance; and (3) improperly relying on clearly erroneous facts, speculative evidence, and unreliable victim statements. Dissenting, Judge Tashima wrote that the district court committed prejudicial, significant procedural error in imposing an upward variance on the basis of investor losses that were not attributable to the defendant’s criminal conduct.
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