United States v. Michael Pauckert ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30320
Plaintiff-Appellee, D.C. No.
2:12-cr-00138-TOR-1
v.
MICHAEL JAMES PAUCKERT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Argued and Submitted December 6, 2016
Seattle, Washington
Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.
Michael Pauckert appeals his 144-month sentence for unlawfully possessing
a firearm, an explosive device, and materials for creating fraudulent identification
documents. This is his second appeal. As in his first appeal, Pauckert argues that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the district court committed procedural and substantive errors. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Pauckert argues that the district court committed significant
procedural error by miscalculating the applicable Guidelines range. Pauckert did
not object to the Guidelines calculation at his original sentencing or at
resentencing, and the parties stipulated to his base offense level. We therefore
review Pauckert’s sentence for plain error. See Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016); United States v. Guzman-Mata, 579 F.3d 1065, 1068
(9th Cir. 2009).
In this appeal, the parties dispute whether the district court correctly
calculated Pauckert’s base offense level. A district court must correctly calculate
the Guidelines range and use the recommendation as “the starting point and the
initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007). Pauckert,
however, cites no authority requiring a district court independently to recalculate a
defendant’s base offense level where the parties have stipulated to it.
The district court also stated that it would impose an identical sentence in the
event that it incorrectly calculated the Guidelines range. “A district court’s mere
statement that it would impose the same above-Guidelines sentence no matter what
the correct calculation cannot, without more, insulate the sentence from
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remand . . . .” United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.
2011) (per curiam). “[A] one-size-fits-all explanation ordinarily does not
suffice[,]” id., but “[t]here may be instances when, despite application of an
erroneous Guidelines range, a reasonable probability of prejudice does not exist”
under plain error review, Molina-Martinez, 136 S. Ct. at 1346.
Here, the district court did much more than give “a one-size-fits-all
explanation” that it would impose the same sentence even if the guidelines range
were lower. The district court thoroughly articulated why the unique
circumstances of this case justified a 144-month sentence based on 18 U.S.C.
§ 3553 factors. These unique circumstances included the nature of the offenses,
Pauckert’s criminal history, and the threat to the public. In light of the parties’
stipulation and the district court’s explanation of the sentence, Pauckert has failed
to demonstrate plain error—i.e. that there is a “reasonable probability that but for
the error [Pauckert] would have received a different sentence.” Id. at 1341.
2. Pauckert argues that the district court violated this court’s mandate by
considering improper factors, such as Pauckert’s intentions, in its § 3553 analysis.
Pauckert misreads the prior disposition. The statements in the mandate upon
which Pauckert relies relate to the district court’s previous use of the hypothetical
crime of attempted murder to calculate the Guidelines range, not what the district
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court could consider in its § 3553 analysis. The district court did not violate our
mandate.
3. Pauckert argues that his sentence is substantively unreasonable. We
review for abuse of discretion. Gall, 552 U.S. at 51. Here, the evidence adduced
at the sentencing hearing supports the district court’s conclusion that Pauckert
committed serious offenses. The government presented evidence that Pauckert
may have prepared to commit even more serious offenses—such as targeting a
parole officer and rape. The evidence showed that at the time of his arrest,
Pauckert possessed a pipe bomb that had been shaved down on one side to weaken
it, making it more likely to explode in the direction of the weakened side. Shrapnel
was attached to the bomb on the weakened side, suggesting that someone had
designed the bomb to target and kill an individual person. Forensic analysis of
computers reported to belong to Pauckert revealed that someone had searched the
home address of Pauckert’s parole officer. Pauckert also possessed “rape kits” or
“Go Bags” containing, among other things, condoms, a black ski mask, and two
pairs of flex ties combined to make handcuffs. The district court did not abuse its
discretion by concluding that the 144-month sentence was “sufficient, but not
greater than necessary, to comply with the purposes set forth in” § 3553(a). See
18 U.S.C. § 3553(a).
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4. Pauckert’s request to reassign the case to another district judge is
denied as moot.
AFFIRMED.
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