United States v. Shayne Ziska ( 2010 )

FILED
NOT FOR PUBLICATION DEC 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50336
Plaintiff - Appellee, D.C. No. 2:04-cr-01002-TJH-1
v.
MEMORANDUM*
SHAYNE ALLYN ZISKA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted November 1, 2010
Pasadena, California
Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.
Shayne Ziska was charged in a five-count indictment with conspiracy to
engage in racketeering activities, in violation of 18 U.S.C. § 1962(d) (Count 1),
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
two counts of committing a violent crime in aid of racketeering (“VICAR”), in
violation of 18 U.S.C. §§ 1959(a)(3) and 2(a) (Counts 2 and 4), and two counts of
deprivation of civil rights (Counts 3 and 5), in violation of 18 U.S.C. § 242. Mr.
Ziska was tried by the court and convicted on Counts 1, 4 and 5. The district court
sentenced Mr. Ziska to 210 months’ imprisonment, and he appealed his conviction
and sentence. This court affirmed his conviction, but remanded for resentencing
because the offense level had been calculated incorrectly; specifically, the
probation department had calculated the offense level at 35, but, correctly
calculated, his offense level should have been 34. United States v. Ziska, 267 F.
App’x 717, 719 (9th Cir. 2008).
On remand, Mr. Ziska represented himself during resentencing, and the
district court reimposed a 210-month sentence. Mr. Ziska now appeals his
conviction and sentence for a second time.
Mr. Ziska first claims that the Government did not prove that he had the
requisite intent to sustain his conviction on Count 4. Mr. Ziska raised the issue of
the sufficiency of the evidence on Count 4 in his prior appeal, and that issue was
resolved by this court. See id. There has been no intervening change in law, or
other exceptional circumstances, that might warrant revisiting our prior
determination. See United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999).
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Mr. Ziska also maintains that, under this court’s case law, his waiver of his
right to counsel at resentencing was ineffectual because the district court, at the
time of the waiver, failed to apprise him of the maximum penalty he faced. We
have held, however, that the district court’s failure to apprise the defendant of a
specific risk of self-representation does “not necessitate automatic reversal when
the record as a whole reveals a knowing and intelligent waiver.” United States v.
Balough, 820 F.2d 1485, 1488 (9th Cir. 1987); see also United States v. Gerritsen,
571 F.3d 1001, 1010 (9th Cir. 2009) (observing that “[t]he Supreme Court has
directed us to take a ‘pragmatic approach to the waiver question,’ and we are
mindful of its warning not to establish rigid requirements that must be met before a
defendant is deemed to have effectively waived counsel” (quoting Iowa v. Tovar,
541 U.S. 77, 90 (2004))). Our review of the record as a whole convinces us that
Mr. Ziska knowingly, intelligently and voluntarily waived his right to counsel on
resentencing.
Finally, Mr. Ziska takes issue with various aspects of the district court’s
offense-level calculation. Whether Count 5 is considered an act in furtherance of
the conspiracy charged in Count 1 or whether it is considered one of a group of
related convictions, Mr. Ziska’s conviction on Count 5 provides the basis for
determining his sentence because it yields the greatest offense level. See U.S.S.G.
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§§ 2E1.1(a)(2) cmt. n.1, 3D1.2 (2005). With respect to that count, the presentence
report correctly identified U.S.S.G. § 2A1.1 as the most analogous guideline to the
conduct established by the offense of conviction--the assault on Nathan Johnson.
Additionally, the district court did not err when it applied the seven-level
increase for permanent bodily injury under U.S.S.G. § 2A2.2(b)(3) without making
specific findings as to the permanency of Johnson’s injury. See Fed. R. Crim. P.
32(i)(3)(B). Mr. Ziska did not present to the district court any evidence calling
into question the nature of Johnson’s injuries; consequently, there was no factual
dispute for the district court to resolve on the record. See United States v. Stoterau,
524 F.3d 988, 1011 (9th Cir. 2008) (stating that “[o]nly specific factual objections
trigger [the requirements of] Rule 32(i)(3)(B)” to resolve disputes on the record).
Finally, the district court did not plainly err in increasing Mr. Ziska’s offense
level by two units pursuant to U.S.S.G. § 3D1.4 for the assaults on Johnson and
Mark Krueger. We cannot determine that the district court’s reliance on the
assaults as underlying racketeering activity was “so clear-cut” or “so obvious” that
“a competent district judge should be able to avoid [the error] without benefit of
objection.” United States v. Klinger, 128 F.3d 705, 712 (9th Cir. 1997) (quotation
marks and citation omitted).
AFFIRMED
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