United States v. Ross Hack ( 2011 )

FILED
NOT FOR PUBLICATION FEB 16 2011
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. 09-50651
Plaintiff - Appellee, D.C. No. 2:08-cr-00344-DDP-1
v.
MEMORANDUM *
ROSS CHARLES HACK,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 14, 2011 **
Pasadena, California
Before: KLEINFELD, LUCERO ***, and GRABER, Circuit Judges.
*
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).
***
The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
The district court did not commit procedural error in imposing its sentence;
it calculated the appropriate Guidelines range, explained why it decided to deviate
from the Guidelines range, and gave the parties an opportunity to discuss the
proposed sentence before finalizing it. Gall v. United States, 552 U.S. 38, 51
(2007).
The district court did not abuse its discretion in assessing a 36-month
imprisonment term. The district court looked at all of the § 3553(a) factors, but put
the most weight on the first factor, the nature and circumstances of the offense.
The district judge found by clear and convincing evidence that Hack’s motive for
committing the passport fraud was to evade the police’s murder investigation. This
finding is supported by substantial evidence in the record. Thus, the district court
did not abuse its discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (per curiam).
Nor did the district court violate Federal Rule of Criminal Procedure 32 or
due process. Hack waived his objections to the Presentence Investigation Report
by not filing his objections to them within 14 days, Fed. R. Crim. P. 32(f)(1), and
he failed to provide countervailing evidence to create any specific disputes
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regarding the accuracy of the evidence. United States v. Stoterau, 524 F.3d 988,
1011–12 (9th Cir. 2008). For the same reasons, it was not an abuse of discretion
by the district court to choose not to hold evidentiary hearings; Hack was given the
opportunity to rebut the Presentence Investigation Report both in writing and at
sentencing, so no evidentiary hearing was required. United States v. Berry, 258
F.3d 971, 976 (9th Cir. 2001).
The sentence was supported by reliable evidence, and, therefore, did not
violate Hack’s due process rights. United States v. Petty, 982 F.2d 1365, 1369 (9th
Cir. 1993); see also United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995).
Finally, the terms and conditions of Hack’s supervised release are not vague or
overbroad, do not deprive him of more liberty than necessary, and are directly
grounded in the goals of § 3553(a). See United States v. Vega, 545 F.3d 743, 749
(9th Cir. 2008); United States v. Soltero, 510 F.3d 858, 866–67 (9th Cir. 2007) (per
curiam); United States v. Ross, 476 F.3d 719, 721–22 (9th Cir. 2007).
AFFIRMED.
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