United States v. John Mikulak ( 2015 )

FILED
NOT FOR PUBLICATION
SEP 16 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50352
Plaintiff - Appellee, D.C. No. 3:13-cr-03943-W-1
v.
MEMORANDUM*
JOHN HOWELL MIKULAK,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted September 2, 2015
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
1. Although we ordinarily do not resolve claims of ineffective assistance of
counsel on direct appeal, the record is sufficiently developed to allow us to do so
here. See United States v. Liu, 731 F.3d 982, 995 (9th Cir. 2013). Even if John
Mikulak’s counsel rendered deficient performance by failing to cite United States
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
v. Henderson, 649 F.3d 955 (9th Cir. 2011), and the related 2012 Sentencing
Commission report, Mikulak has not met the prejudice prong of Strickland v.
Washington, 466 U.S. 668 (1984). The district court was aware that the
Sentencing Guidelines were advisory and that the court was free to depart
downward from the recommended range. Defense counsel presented the court
with a number of grounds for departing downward, including Mikulak’s potential
for rehabilitation and the fact that he had no intent to distribute content.
Nonetheless, after taking into account all of the equities in Mikulak’s favor as well
as the relevant mitigating factors under 18 U.S.C. § 3553(a), the court sentenced
Mikulak to the low end of the advisory Guidelines range. Mikulak has provided
nothing to suggest that the district court would have departed downward had
defense counsel only cited Henderson or the Sentencing Commission report. In
fact, the government itself had informed the court that other courts had disregarded
the Guidelines and their underlying policies in similar cases, so the court was
aware that a policy disagreement with the child pornography Guidelines provided
an additional potential ground for departure. Mikulak has therefore failed to
establish a reasonable possibility that the court would have imposed a lower
sentence had counsel performed in a non-deficient manner.
Page 3 of 3
2. The district court did not commit plain error by relying on the Sentencing
Guidelines in determining the proper sentence to impose. Although Henderson
authorizes courts to depart from the Guidelines for policy reasons, courts are in no
way obligated to do so. The district court did not consider the Guidelines range
presumptively reasonable, but instead properly determined whether the 121-month
sentence was appropriate given the nature of the crime and Mikulak’s individual
circumstances.
3. The 121-month, within-Guidelines sentence was not substantively
unreasonable. The court was well aware of the treatment that Mikulak had sought
voluntarily during the year before he was charged and referred to it during
sentencing. There is no evidence that the court failed to take Mikulak’s
rehabilitation into consideration when considering the appropriateness of the
sentence to be imposed.
AFFIRMED.