United States v. Rudy Wahchumwah ( 2010 )

FILED
NOT FOR PUBLICATION DEC 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30476
Plaintiff - Appellee, D.C. No. CR-08-2016-WFN
*
v. MEMORANDUM
RUDY LEE WAHCHUMWAH,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted October 14, 2009
Seattle, Washington
Before: CUDAHY, ** Senior Circuit Judge, and RAWLINSON and
CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
Appellant Rudy Lee Wahchumwah appeals his conviction for failure to register
as a sex offender in violation of the Sex Offender Registration and Notification Act
(SORNA), see 18 U.S.C. § 2250, and his 24-month, within-Guidelines sentence.
1. We deferred submission of this case pending the Supreme Court’s
decision in Carr v. United States, 130 S. Ct. 2229 (2010). Because Wahchumwah
was initially prosecuted as a sex offender under federal law and, in the present
case, was charged and convicted of failing to register while he was residing in
Indian country in late 2007, Carr does not affect this appeal. See 18 U.S.C. §
2250(a)(2)(A)-(B); Carr, 130 S.Ct. at 2235 n.3 (noting “[f]or persons convicted of
sex offenses under federal or Indian tribal law, interstate travel is not a prerequisite
to § 2250 liability”).
2. We review de novo a motion to dismiss based on statutory or
constitutional interpretation. United States v. Other Medicine, 596 F.3d 677, 680
(9th Cir. 2010). The district court correctly denied Wahchumwah’s motion to
dismiss because SORNA is not unconstitutionally vague and because
Wahchumwah’s conviction was not contingent on Washington State’s
implementation of SORNA’s registration standards. See United States v. George,
No. 08-30339, 2010 WL 3768047 at *1-2 (9th Cir. Sept. 29, 2009); see also Carr,
130 S. Ct. at 2240 (noting that “[t]he act of travel by a sex offender may serve as a
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jurisdictional predicate for § 2250, but it is also, like the act of possession, the very
conduct at which Congress took aim”). Additionally, SORNA is a permissible
exercise of Congress’s Commerce Clause power. Id. at *3-4; see also Carr, 130 S.
Ct. at 2238 (approving Congress’s decision to subject certain “offenders to
criminal liability only when, after SORNA’s enactment, they use the channel of
interstate commerce in evading a State’s reach”).
3. We review de novo whether a prior conviction may be used to calculate a
defendant’s criminal history score. See United States v. Allen, 153 F.3d 1037, 1040
(9th Cir. 1998). Although the signing of a plea form without an explicit waiver of
counsel does not necessarily constitute a waiver of claim to counsel, here,
Wahchumwah’s criminal history was properly enhanced based on his conviction
because he failed to overcome the presumption that there was a valid waiver of
counsel. See id. at 1041; United States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir.
1993) (explaining that a defendant may not meet his burden with a silent or
missing record).
4. We review a defendant’s sentence first for procedural error and second for
substantive reasonableness. United States v. Carty, 520 F.3d 984, 993 (9th Cir.)
(en banc), cert. denied sub nom. Zavala v. United States, 553 U.S. 1061 (2008).
Wahchumwah argues that the district court committed procedural error because it
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failed to address his arguments that (1) he was denied the opportunity to seek a
partially concurrent sentence for a supervised release violation and for the present
violation of SORNA; (2) Sentencing Guideline § 2A3.5 is not based on proper
study or research; and (3) the district court did not explain its reasons for denying
his request for an 18-month sentence combined with 6 months in a residential re-
entry center. Wahchumwah did not object to the district court’s procedure during
sentencing, so we review for plain error. See United States v. Waknine, 543 F.3d
546, 551 (9th Cir. 2008). The district court did not err: it questioned
Wahchumwah’s counsel regarding his arguments for a lower sentence, indicated
that it had reviewed the papers submitted and expressly considered the Guidelines
and the 18 U.S.C. § 3553(a) factors in making its sentencing determination. See,
e.g., Rita v. United States, 551 U.S. 338, 356-58 (2007) (holding that “[t]he
sentencing judge should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
legal decisionmaking authority,” and that “when a judge decides simply to apply
the Guidelines to a particular case, doing so will not necessarily require lengthy
explanation”). Moreover, Wahchumwah has not proved prejudice. See United
States v. Marcus, 130 S.Ct. 2159, 2164 (2010) (the “substantial rights” prong of
the plain error test normally requires the defendant to prove that there is a
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“reasonable probability that the error affected the outcome of the district court
proceedings”); United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
The district court is therefore AFFIRMED.
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