United States v. Jose Donelson ( 2011 )

FILED
NOT FOR PUBLICATION JUN 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50370
Plaintiff - Appellee, D.C. No. 2:08-cr-00939-SJO-1
v.
MEMORANDUM*
JOSE MANUEL DONELSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted June 10, 2011**
Pasadena, California
Before: TROTT and RYMER, Circuit Judges, and MCNAMEE, Senior District
Judge.***
*
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 Stephen M. McNamee, Senior District Judge for the
U.S. District Court for Arizona, sitting by designation.
Donelson appeals the district court’s denial of his request for substitution of
counsel made after his conviction by a jury and before sentencing. After what his
appellate counsel admits was a “lengthy inquiry into his concerns,” the court
concluded that if there was “a breakdown of communication, [it was] caused by
Mr. Donelson.” The record supports the district court’s conclusions and findings
on this issue, and the ruling which Donelson disputes was demonstrably an
appropriate exercise of the court’s discretion.
Second, Donelson disputes the court’s order of restitution in the amount of
$17,000 arguing (1) that the order was not supported by sufficient reliable
evidence, and (2) that in any event, the court failed to make the findings required
pursuant to Fed. R. Crim. P. 32(h)(i)(3)(B) to support it.
The factual issue of whether Donelson possessed the seventeen (17) missing
postal orders was fully argued at sentencing. In rejecting the Presentence
Investigation Report’s (PSR) recommendation that no restitution was appropriate,
the court manifestly adopted the government’s contrary position that Donelson did
possess those stolen orders, and that each was worth $1,000, for a total of $17,000.
The court had reviewed the PSR, the addendum to the PSR, a confidential letter of
recommendation to the court from the probation officer, and the government’s
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sentencing pleadings. The court’s findings in this regard were not clearly
erroneous.
As to Rule 32, it has been “complied with where the district court expressly
adopts the position of either party to the dispute.” United States v. Doe, 488 F.3d
1154, 1158 (9th Cir. 2007). Doe is directly on point and resolves this issue.
Finally, Donelson argues that his sentence was substantively unreasonable
and not in accord with 18 U.S.C. § 3553(a). He also asserts, relying on United
States v. Booker, 543 U.S. 220 (2005), that his sentence violated the Sixth
Amendment-based rule against imposing a sentence greater than the sentence
justified by the factual findings necessarily found by the jury as expressed in its
verdict.
Donelson’s sentence was roughly half of the maximum sentence. Given that
his crime was most probably premeditated while he was in prison for armed
robbery of a United States Post Office, and that the day after the burglary of a
Postal Store in this case he possessed most of the 3,163 stolen blank postal money
orders, if anything, his sentence was lenient, certainly not unreasonable.
Donelson’s Sixth Amendment argument is foreclosed by our decision in
United States v. Hickey, 580 F.3d 922, 932 (9th Cir. 2009) (“Because the
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sentencing guidelines are advisory after Booker, the Sixth Amendment does not
require that the loss be proved to a jury beyond a reasonable doubt.”).
AFFIRMED.
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