United States v. Alan Flesher , 588 F. App'x 652 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 13-50220 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 2:10-cr-00864-TJH-1
v.
MEMORANDUM*
ALAN GREGORY FLESHER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted December 11, 2014
Pasadena, California
Before: GILMAN,** GRABER, and CALLAHAN, Circuit Judges.
Defendant Alan Gregory Flesher appeals his conviction and sentence for
mail fraud, in violation of 18 U.S.C. §§ 1341 and 2(b). We affirm.
1. The district court did not plainly err when it accepted Defendant’s guilty
plea. United States v. Minore, 292 F.3d 1109, 1117 (9th Cir. 2002). Even
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
assuming that the court developed an insufficient factual basis for accepting
Defendant’s plea under Federal Rule of Criminal Procedure 11, the error was
harmless because the record does not disclose "a reasonable probability that, but
for the error, he would not have entered the plea." United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). To the contrary, the record shows that Defendant
indicated consistently that he intended to plead guilty. Moreover, before his
sentencing hearing, Defendant met with a probation officer and had the
opportunity to review the detailed factual allegations in the Presentence Report. At
sentencing, Defendant neither objected to the assertions in the Report nor
attempted to withdraw his guilty plea.
2. Defendant’s low-end, within-Guidelines sentence was substantively
reasonable. United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008). The district
court had discretion to treat Defendant differently from his co-defendants because
(1) Defendant was the leader of the fraud scheme, and (2) the court articulated
specific reasons for varying downward when it sentenced the co-defendants.
AFFIRMED.
2