United States v. Derian Eidson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10132
Plaintiff-Appellee, D.C. No.
2:11-cr-00234-TLN-2
v.
DERIAN EIDSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted January 13, 2021**
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,*** District
Judge.
Defendant Derian Eidson appeals her 108-month sentence upon resentencing
for convictions of money laundering conspiracy and attempted money laundering
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
under 18 U.S.C. §§ 1956(h) and (a)(1)(B)(i). Finding no error, we affirm the
district court’s sentence.1
1. The district court did not abuse its discretion by imposing a two-level
increase for obstruction of justice under United States Sentencing Guidelines
(USSG) § 3C1.1. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
2017) (en banc) (we review the district court’s application of the guidelines for
abuse of discretion). The district court properly determined that Eidson impeded
the grand jury investigation by withholding invoices which were highly probative
of the scheme’s criminality. The district court permissibly concluded that she also
impeded the grand jury by providing the putative 2004 assignment contract which
had been created and altered in 2009.
2. The district court did not err by declining to hold another evidentiary
hearing on whether the obstruction enhancement applied. The court gave Eidson an
adequate opportunity to argue against the obstruction enhancement. See Fed. R.
Crim. P. 32(i)(4).
3. The district court did not err by denying Eidson’s request for a minor role
adjustment under USSG § 3B1.2. The district court permissibly concluded that
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The government requests leave to admit an audio recording that is not part
of the district court’s electronic docket. Because we are able to resolve the appeal
without reference to this item, the government’s motions, ECF Nos. 34 & 38, are
DENIED AS MOOT.
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Eidson clearly did not play a minor role in the fraudulent scheme that lasted
several years where Eidson helped co-defendant Steven Zinnel hide millions of
dollars from the bankruptcy court and the family court.
4. The district court did not err by increasing Eidson’s guideline range for
the use of a special skill as a trained attorney under USSG § 3B1.3. During the
FBI’s investigation, Eidson was recorded touting her status as an officer of the
court and using her position to manipulate her co-defendant’s business partner.
5. The district court did not err by imposing a two-level enhancement for
sophisticated money laundering. The court properly considered Eidson’s use of a
shell company and the scheme’s method of passing funds through her client trust
account to impose the enhancement. See USSG § 2S1.1(b)(3) & Application
n.5(A).
6. The low-end guideline sentence of 108 months was substantively
reasonable. See United States v. Overton, 573 F.3d 679, 700 (9th Cir. 2009). The
district court properly considered the 18 U.S.C. § 3553(a) factors, thoroughly
evaluating the circumstances of the offense and the history and characteristics of
the defendant.
7. Eidson’s remaining procedural and constitutional challenges under the
Sixth Amendment fail. Under United States v. Treadwell, the Sixth Amendment is
not violated when the sentencing court considers circumstances not found by the
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jury so long as such consideration does not result in a sentence that exceeds the
statutory maximum sentence. 593 F.3d 990, 1017–18 (9th Cir. 2010) partially
overruled on other grounds by United States v. Miller, 953 F.3d 1095, 1103 & n.10
(9th Cir. 2020); see also United States v. Raygosa-Esparza, 566 F.3d 852, 855 (9th
Cir. 2009). Here, Eidson’s sentence was below the statutory maximum so her
argument is without merit.
Lastly, Eidson’s contention that the sentencing enhancements should have
been found by clear and convincing evidence fails. This argument was not raised
with the district court, so it is reviewed for plain error. United States v. Gallegos,
613 F.3d 1211, 1213 (9th Cir. 2010). Eidson does not demonstrate how the court’s
findings had a disproportionate effect on her sentence, a requirement to trigger the
heightened standard. See United States v. Pike, 473 F.3d 1053, 1057 (9th Cir.
2007). Thus, the district court did not plainly err.
AFFIRMED.
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