USA V. JOHANNES VERMAAK, No. 13-50096 (9th Cir. 2014)

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCTOBER 20 2014 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. U.S. COURT OF APPEALS No. 13-50096 D.C. No. 8:10-cr-00225-CJC-1 MEMORANDUM* JOHANNES VERMAAK, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-50097 D.C. No. 8:10-cr-00224-CJC-1 v. JOHANNES VERMAAK, Defendant - Appellant. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. UNITED STATES OF AMERICA, No. 13-50240 Plaintiff - Appellee, D.C. No. 8:10-cr-00224-CJC-1 v. JOHANNES VERMAAK, Defendant - Appellant. UNITED STATES OF AMERICA, No. 13-50241 Plaintiff - Appellee, D.C. No. 8:10-cr-00225-CJC-1 v. JOHANNES VERMAAK, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Argued and Submitted October 7, 2014 Pasadena, California Before: TALLMAN, BEA, and FRIEDLAND, Circuit Judges. Johannes Vermaak appeals his 84-month sentence for mail fraud. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The district court did not plainly err in its consideration of aggravating factors at sentencing. To the extent the district court considered Vermaak s inability to pay restitution, it did so only as part of its analysis of victim impact. This is permissible 2 under United States v. Rangel, 697 F.3d 795, 803 (9th Cir. 2012), and 18 U.S.C. § 3553(a). Nor did the district court plainly err by failing to explain more thoroughly its above-Guidelines sentence. The district court considered the appropriate sentencing factors and provided a sufficient explanation for the upward variance to permit meaningful appellate review. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Finally, the 84-month sentence was not substantively unreasonable. The aggravating factors identified by the sentencing court sufficiently justify the upward variance, so the sentence was not an abuse of discretion. See id. at 991-93. AFFIRMED. 3

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