United States v. John Boone , 675 F. App'x 679 ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50017
Plaintiff-Appellee, D.C. No.
2:12-cr-01014-ODW-1
v.
JOHN WINSTON BOONE, AKA MEMORANDUM*
American Blog, Inc., AKA Great Ideas,
LLC, AKA John Greene, AKA HS
Consortium, Inc., AKA John King, AKA
John Smith, AKA Justin Winabali,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted December 5, 2016
Pasadena, California
Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
John Winston Boone pleaded guilty to and was convicted of two counts of
wire fraud, in violation of 18 U.S.C. § 1343. He appeals the 120-month sentence
imposed by the district court. We affirm.
First, Boone’s argument that the district court improperly participated in
sentencing negotiations by pressuring Boone to “nullify a related state civil court
decision to avoid a harsher sentence” fails. A district court can consider a
defendant’s recalcitrant behavior at sentencing. Warning a defendant of the
consequences of his behavior during sentencing is not a quid pro quo exchange as
in United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir. 2011), and is not
improper.
Second, Boone argues that the government breached the plea agreement by
“us[ing] [Boone’s] arguments [about the value he allegedly gave to victims] to
draw adverse inferences about his personal character.” The plea agreement did not
prohibit the government from challenging Boone’s arguments regarding loss and
restitution, and expressly allowed the government “to argue for a sentence outside
the sentencing range established by the Sentencing Guidelines.”
Third, Boone’s argument that the district court violated his right to
allocution fails. The district court invited Boone to allocute three times. He was
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not interrupted, and the court did not ask any questions during the second and third
allocutions. In total, these allocutions cover almost 10 pages of transcript.
Fourth, Boone’s argument that his sentence should be reversed based on the
district court’s “arbitrary and capricious” sentencing procedures is meritless.
Boone asserts that the district court “moved the target” by first instructing Boone
to file a satisfaction of judgment, then instructing him to vacate the judgment in the
related state court action. The district court did not “move the target,” but rather
changed its tentative viewpoint in response to the government’s argument that “a
satisfaction of judgment . . . is not justice because that would say [V.A.] owed the
money and she paid it.” Indeed, regardless of the court’s disagreement with
defense counsel’s decision to prepare a satisfaction of judgment and declaration
asserting that Boone will not attempt to collect on the judgment, the court
explained that it would no longer consider a statutory maximum sentence.
Moreover, Boone argues that two1 “clearly erroneous facts” were the basis
of the district court’s sentence. Boone first argues that the district court
erroneously accused him of failing to take full responsibility, which is allegedly
inconsistent with giving Boone the three-level reduction for acceptance of
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In his opening brief, Boone also argues that the district court based its
sentence on a third “clearly erroneous fact”: that Boone’s community service was
tainted by fraud. However, he withdrew that argument in his reply brief.
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responsibility under the U.S. Sentencing Guidelines § 3E1.1(a). The alleged
inconsistent statements consist of the district court’s comments on Boone’s
callousness, lack of remorse, and lack of understanding of the seriousness of his
crime. These statements were not inconsistent with awarding Boone the
three-level reduction for acceptance of responsibility under § 3E1.1(a) for
admitting the conduct comprising the offense of conviction and not putting the
government to its burden of proof at trial.
Boone also argues that the district court was incorrect in stating that one of
the victims sought the return of his investment because he needed life-saving
medical treatment. Although it is true that the victim needed money to pay
medical bills, there is no evidence that the medical bills were for “life-saving
medical treatment.” Boone does not demonstrate that the misinformation
constituted the basis for his sentence. See United States v. McGowan, 668 F.3d
601, 606 (9th Cir. 2012). Any error was harmless because the statement was not
material to the district court’s decision.
Further, the district court’s explanation of its sentence was sufficient. The
court held four sentencing hearings. When imposing the sentence, the court gave a
statement of reasons that discussed the Sentencing Guidelines, the § 3553(a)
factors, specific facts of the crime, and Boone’s background and criminal history.
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This explanation was adequate to permit meaningful appellate review. See Gall v.
United States, 552 U.S. 38, 50 (2007).
Fifth, Boone’s argument that his sentence is substantively unreasonable is
meritless. The district appropriately considered “the applicable Guidelines range as
‘the starting point and the initial benchmark.’” United States v. Henderson, 649
F.3d 955, 964 (9th Cir. 2011) (quoting Gall, 552 U.S. at 49), and compelling
aggravating factors justified the sentence. Moreover, while Boone may have
satisfied the technical requirements in the Sentencing Guidelines for acceptance of
responsibility, his statements to the district court indicated that he had no
understanding of the harm he had inflicted on the victims. Finally, the mitigating
factors identified by Boone did not deprive the court of its discretion to impose a
120-month sentence. See United States v. Barsumyan, 517 F.3d 1154, 1159 n.6
(9th Cir. 2008) (noting that mitigating factors are a part of “a holistic § 3553(a)
review”). The mitigating factors were properly considered by the district court,
which gave them little weight in comparison to the aggravating factors.
Finally, Boone’s request for judicial notice is denied. See Fed. R. Evid.
201(b)(2).
AFFIRMED.
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