United States v. Robin Pawlak

FILED
NOT FOR PUBLICATION
AUG 30 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50466
Plaintiff-Appellee, D.C. No. 2:16-cr-00448-R-1
v.
MEMORANDUM*
ROBIN KASI PAWLAK,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted August 13, 2019**
Pasadena, California
Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges.
*
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 D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
Robin Pawlak appeals her seventy-two month sentence following her guilty
pleas to one count of bank robbery and one count of conspiracy to commit bank
robbery. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.1
Although she received a below guidelines sentence, Pawlak argues that the
district court committed reversible procedural error by failing to calculate the
guideline range before it imposed her sentence. Pawlak did not object at the time
of sentencing, so we review for plain error. United States v. Waknine, 543 F.3d
546, 551 (9th Cir. 2008).
The government concedes that the district court plainly erred in failing to
calculate the guidelines, see United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc), but contends that Pawlak fails to establish any prejudice resulting
from the district court’s error. We agree.
It is Pawlak’s burden to “demonstrate ‘a reasonable probability that [she]
would have received a different sentence’ if the district court had not erred.”
United States v. Vargem, 747 F.3d 724, 728 (9th Cir. 2014) (quoting United States
v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011)). Here, Pawlak does not dispute the
accuracy of the pre-sentence report’s guideline calculation, and she received a
1
The parties are familiar with the facts and record; we recite them only
as necessary to resolve Pawlak’s appeal.
2
sentence that was twelve months below the low end of that range. On these facts,
Pawlak has not established the requisite prejudice to merit vacatur of her sentence.
AFFIRMED.
3