United States v. Tomas Rodriguez-Verduzco

FILED
NOT FOR PUBLICATION JUN 26 2012
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. 11-30206
Plaintiff - Appellee, D.C. No. 2:10-cr-00120-RMP
v.
MEMORANDUM *
TOMAS RODRIGUEZ-VERDUZCO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief Judge, Presiding
Argued and Submitted June 7, 2012
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**
Defendant Tomas Rodriguez-Verduzco (“Rodriguez”) appeals his sentence
of thirty-seven months of imprisonment for Count One: conspiracy to manufacture
marijuana of 1,000 or more plants and Count Three: destruction of government
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
property. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
First, Rodriguez challenges the district court’s denial of his request for
additional funding under the Criminal Justice Act (“CJA”) for neuropsychological
evaluations beyond those that the district initially approved. This court reviews for
an abuse of discretion a district court’s denial of a request for funding for expert
services pursuant to 18 U.S.C. § 3006A(e)(1). United States v. Reed, 575 F.3d
900, 918 (9th Cir. 2009). This court applies a clearly erroneous standard of review
to the district court’s findings of fact. United States v. McEnry, 659 F.3d 893, 896
(9th Cir. 2011).
In order to prevail on an appeal of the district court’s denial of funds for
expert services, the appellant “must show by clear and convincing evidence that
(1) a reasonably competent counsel would have required the assistance of the
requested expert for a paying client, and (2) he was prejudiced by the lack of expert
assistance.” Reed, 575 F.3d at 918 (citation and internal quotation marks omitted).
The district court found that the declarations by A.M. Llorente, Ph.D., and Monica
Delgado, Ph.D., did not support an award beyond the $2,400 per expert that the
district court previously authorized pursuant to 18 U.S.C. § 3006A(e)(3). This
finding was not clearly erroneous. In support of the doctors’ opinions that
Rodriguez may have a cognitive impairment that would be relevant to sentencing,
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Dr. Llorente’s and Dr. Delgado’s declarations contained only generalized reasons
which could apply to many different defendants. Further, the district court
presided over a contested sentencing hearing lasting four days and, in determining
Rodriguez’s sentence, the district court specifically commented on some of the
factors that Drs. Llorente and Delgado addressed, including Rodriguez’s youth,
limited education, and limited life experience. Rodriguez has failed to established
by clear and convincing evidence that a reasonably competent counsel would have
required Drs. Llorente and Delgado’s additional assistance for a paying client, or
that he was prejudiced by the lack of their additional services. We therefore hold
that the district court did not abuse its discretion when it denied Rodriguez’s CJA
request for additional expert services.
Second, Rodriguez argues that the district court committed reversible
procedural error by failing to address the mitigating factors that he raised and his
individual circumstances. Insofar as Rodriguez failed to object to these issues
during the sentencing hearing, the plain error standard of review applies. See
United States v. Grant, 664 F.3d 276, 279 & n.2 (9th Cir. 2011). A district court
determining what sentence to impose upon a defendant is not required to “tick off
each of the [18 U.S.C.] § 3553(a) factors to show that it has considered them.”
United States v. Ellis, 641 F.3d 411, 422 (9th Cir. 2011) (citation and quotation
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marks omitted). Nor was the district court required to give a lengthy explanation
for Rodriguez’s sentence because it was within the range provided in the United
States Sentencing Guidelines (“USSG”). See United States v. Valencia-Barragan,
608 F.3d 1103, 1108 (9th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338,
356 (2007)), cert. denied, 131 S. Ct. 539 (2010). As previously noted, the district
court specifically discussed some of the mitigating factors that Rodriguez relied
upon. That Rodriguez’s co-defendant shared these factors does not establish that
the district court failed to consider Rodriguez’s individual circumstances and
arguments. We therefore reject Rodriguez’s argument that the district court
committed plain error by failing to address his mitigation arguments and individual
circumstances.
Third, Rodriguez argues that the district court committed a reversible
procedural error by sentencing him to thirty-seven months of imprisonment each
for Count 1 and Count 3 because Count 3 had a significantly lower sentencing
range under the USSG. The district court, however, calculated a combined
adjusted offense level for Count 1 and Count 3, and this calculation was consistent
with the procedures described in United States v. Evans-Martinez, 611 F.3d 635,
639-40 (9th Cir. 2010), cert. denied, 131 S. Ct. 956 (2011), and with the applicable
sections of the USSG, §§ 3D1.1, 3D1.2, 3D1.3, and 3D1.4. We therefore hold that
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there was no procedural error.
Finally, Rodriguez argues that the imposition of a thirty-seven-month
sentence for both Count 1 and Count 3 was substantively unreasonable. For the
reasons set forth with respect to Rodriguez’s first three arguments, we also hold
that, based on the totality of the circumstances in this case, Rodriguez’s sentence
was sufficient, and not greater than necessary, to accomplish the sentencing goals
of § 3553(a)(2). See United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir.
2011), cert. denied, 132 S. Ct. 1614 (2012).
Accordingly, we AFFIRM Rodriguez’s sentence and the district court’s
denial of additional expert funding.
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