United States v. Mario Weicks ( 2012 )

FILED
NOT FOR PUBLICATION APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10608
Plaintiff - Appellee, D.C. No. 2:05-cr-00040-KJD-RJJ-
1
v.
MARIO WEICKS, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted April 20, 2012**
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
Mario Weicks appeals the sentence imposed by the district court. We
affirm. Because the parties are familiar with the history of this case, we need not
recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
I
The district court did not err by separating the four counts of sexual
misconduct, arising from Appellant’s two trips to Las Vegas with the victim, into
two groups for sentencing purposes. Counts can involve substantially the same
harm when they “involve the same victim and two or more acts or transactions
connected by a common criminal objective or constituting part of a common
scheme or plan.” U.S.S.G. § 3D1.2(b). The commentary to § 3D1.2(b) states that
multiple counts may form “a single course of conduct with a single criminal
objective and represent essentially one composite harm to the same victim . . . even
if they constitute legally distinct offenses occurring at different times.” U.S.S.G. §
3D1.2 cmt. n.4. In this case, the two trips did not necessarily have “a common
criminal objective” or involve a single “composite harm” to the victim. U.S.S.G. §
3D1.2(b).
Although both trips resulted in sexual abuse of the same victim, the trips
took place eight days apart and therefore may reasonably be viewed as separate
episodes of criminal conduct. See U.S.S.G. § 3D1.2 cmt. n.4, ex. 5. (“The
defendant is convicted of two counts of rape for raping the same person on
different days. The counts are not grouped together.”); see also United States v.
Sneezer, 983 F.2d 920, 925 (9th Cir. 1992) (per curium) (holding that sexual
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assaults of the same victim “separated by only a few minutes” must be grouped,
but suggesting that the same offenses committed against a single victim held in
captivity over a period of days would not be grouped).
Weicks also argues that the district court erred by failing to group his felon-
in-possession count with his four sexual misconduct counts. However, he waived
this argument before the district court and is therefore precluded from raising it
before this court. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en
banc).
II
The district court did not abuse its discretion by refusing to continue
Appellant’s resentencing proceedings to allow him to obtain a psychological
evaluation and compile an updated presentence report. Denial of a requested
continuance constitutes an abuse of discretion “only if denial of the continuance
was arbitrary or unreasonable.” United States v. Wills, 88 F.3d 704, 711 (9th Cir.
1996) (internal quotation marks omitted). The district court judge considered
Weicks’s request for a continuance to gather a psychological evaluation and
updated presentence report, but determined, after hearing testimony from Weicks
as to his psychological condition, that there was enough information in the record
to proceed with sentencing. Weicks did not provide the district court with any
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substantial information suggesting a need for the psychological evaluation or a
revised presentence report. United States v. Bos, 917 F.2d 1178, 1183 (9th Cir.
1990). Given the circumstances, the district court’s decision was not arbitrary or
unreasonable.
III
The district court’s sentencing was not substantively unreasonable. The
district court’s sentencing decision in this case reflects “an individualized
assessment based on the facts presented.” Gall v. United States, 552 U.S. 38, 50
(2007). Weicks has neither provided any evidence that the district court ignored
the sentencing factors set forth in 18 U.S.C. § 3553(a) nor suggested any other
reason why the sentence is substantively unreasonable.
AFFIRMED.
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