United States v. Donny Love, Sr. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50009
Plaintiff-Appellee, D.C. No.
3:10-cr-02418-MMM-1
v.
DONNY LOVE, Sr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
M. Margaret McKeown, Circuit Judge, Presiding
Argued and Submitted April 11, 2023
Pasadena, California
Before: BERZON, MILLER, and LEE, Circuit Judges.
Donny Love, Sr. appeals his sentence for convictions of multiple offenses
related to his involvement in the May 2008 bombing of the Edward J. Schwartz
United States Courthouse in San Diego, California. We have jurisdiction under 28
U.S.C. § 1291. We affirm in part, vacate in part, and remand to the district court.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“We review a district court’s interpretations of the federal Sentencing
Guidelines de novo, its factual determinations for clear error, and its application of
the Sentencing Guidelines to the facts as it has found them for abuse of discretion.”
United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008). When no objection
was made at sentencing, we review the forfeited claims for plain error. United
States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc).
1. The district court imposed a 285-month term of imprisonment on Count
Eight, possession of an unregistered firearm, 26 U.S.C. § 5861(d). The parties
agree that this sentence is erroneous because it exceeds the statutory maximum of
120 months of imprisonment. See 26 U.S.C. § 5871. We decline the government’s
request to amend the sentences on Counts One and Two to compensate for the
reduced sentence on Count Eight. See United States v. Ped, 943 F.3d 427, 433 (9th
Cir. 2019). In light of the plain error on Count Eight, and the minute order that
“corrected” the sentences on Counts One and Two to 150 months, we disagree
with the government’s contention that “the court clearly intended to impose 285
months for the first group of convictions.” Therefore, we “vacate the entire
sentence on all counts so that, on remand, the trial court can reconfigure the
sentencing plan to ensure that it remains adequate to satisfy the sentencing factors
in 18 U.S.C. § 3553(a).” Greenlaw v. United States, 554 U.S. 237, 253 (2008).
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2. The district court did not abuse its discretion by applying U.S.S.G.
§ 3B1.1(a), which calls for a four-level enhancement if the defendant was “an
organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive.” Love does not challenge his own role as organizer or
leader, or the involvement of three other participants. He argues that a fifth person,
Julaine Carter, should not be considered a participant in the criminal activity
because Carter’s involvement—giving the FBI false information—did not arise
until four months after the bombing, and because Love’s conviction for inducing
Carter to give false information was ultimately reversed. See United States v. Love,
642 F. App’x 700, 703 (9th Cir. 2016). Neither fact prevents Carter from being
considered a participant in the scheme. See U.S.S.G. § 1B1.3(a)(1) (defining
“[r]elevant [c]onduct” for sentencing to include acts undertaken “in the course of
attempting to avoid detection or responsibility for th[e] offense”); U.S.S.G.
§ 3B1.1 cmt. n.1 (defining “participant” as “a person who is criminally responsible
for the commission of the offense, but need not have been convicted”); United
States v. Thomsen, 830 F.3d 1049, 1071 (9th Cir. 2016) (explaining that a
sentencing court may consider “charged, uncharged, and even acquitted conduct”
when applying an enhancement).
Love is correct that at resentencing, the district court explained the
enhancement by discussing the extensiveness of his scheme rather than the number
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of participants. But “[i]t is not necessary that the district court make specific
findings of fact to justify the imposition of the role enhancement.” United States v.
Whitney, 673 F.3d 965, 975 (9th Cir. 2012). “Regardless of the district court’s
specific statements at sentencing, the enhancement is proper nonetheless if there is
evidence in the record that would support” it. Id. at 976.
3. The district court did not abuse its discretion by applying a two-level
departure for property damage. Under U.S.S.G. § 5K2.5, a court may increase the
sentence if “the offense caused property damage or loss not taken into account
within the guidelines.” Love argues that the Guidelines already took property
damage into account, so this departure was impermissible double counting.
Assuming, without deciding, that property damage was taken into account within
the relevant Guidelines, the departure was still appropriate if the property damage
involved was “to a degree not adequately taken into consideration in the
guidelines.” U.S.S.G. § 5K2.0 cmt. n.3(B)(i); see U.S.S.G. § 5K2.0(a)(3); see also
U.S.S.G. § 5K2.0(a)(2)(A). The district court made a finding adequate to support
the departure on that basis, stating that “while there may be some property damage
contemplated [in the Guidelines], I don’t think it’s of the nature of what we had
here.”
4. The district court did not abuse its discretion by applying a two-level
departure for significant disruption of a government function. Under U.S.S.G.
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§ 5K2.7, a court may increase the sentence if “the defendant’s conduct resulted in a
significant disruption of a governmental function.” Love’s actions caused a busy
federal courthouse to close for an entire day. It was not an abuse of discretion to
determine that the disruption was significant. Love argues that the property-
damage departure already accounted for those consequences. Although one way in
which Love’s actions disrupted the government was by physically damaging the
courthouse, his actions further disrupted the government because they led to the
closure of the courthouse—a consequence not covered by the property-damage
departure.
5. The parties agree that the written judgment erroneously reflects a ten-year
term of supervised release, considering that the district court orally imposed a five-
year term of supervised release. We direct the district court to correct that error on
remand.
6. The district court ordered that Love pay $325,000 in restitution, the
entirety of the government’s losses, jointly and severally with three other people
involved in the bombing scheme. It did not err, let alone plainly err, in doing so.
Love correctly points out that the three other people who perpetrated the bombing
did not owe any restitution. But restitution for multiple wrongdoers may be
apportioned by relative culpability, and Love was the “organizer or leader” of the
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bombing. See 18 U.S.C. § 3664(h). On remand, we direct the district court to
remove the reference to joint and several liability for clarity.
AFFIRMED in part and VACATED in part; REMANDED.
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