United States v. Ross Hack

FILED
UNITED STATES COURT OF APPEALS JUL 18 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
UNITED STATES OF AMERICA, No. 09-50651
Plaintiff - Appellee, D.C. No. 2:08-cr-00344-DDP-1
Central District of California,
v. Los Angeles
ROSS CHARLES HACK,
ORDER
Defendant - Appellant.
Before: KLEINFELD, LUCERO,* and GRABER, Circuit Judges.
The petition for rehearing is GRANTED in part and DENIED in part. The
memorandum disposition filed on February 16, 2011 is amended. The amended
memorandum disposition will be filed concurrently with this order. Subsequent
petitions for rehearing and petitions for rehearing en banc may be filed.
*
The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
FILED
NOT FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50651
Plaintiff - Appellee, D.C. No. 2:08-cr-00344-DDP-1
v. AMENDED
MEMORANDUM *
ROSS CHARLES HACK,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 14, 2011**
Pasadena, California
Before: KLEINFELD, LUCERO ***, and GRABER, Circuit Judges.
*
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 Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
The district court did not commit procedural error in imposing its sentence;
it calculated the appropriate Guidelines range, explained why it decided to deviate
from the Guidelines range, and gave the parties an opportunity to discuss the
proposed sentence before finalizing it. Gall v. United States, 552 U.S. 38, 51
(2007).
The sentence imposed was substantively reasonable, and the district court
did not abuse its discretion in assessing a 36-month imprisonment term. The
district court looµed at all of the y 3553(a) factors, but put the most weight on the
first factor, the nature and circumstances of the offense. The district judge found
by clear and convincing evidence that Hacµ's motive for committing the passport
fraud was to evade the police murder investigation. This finding is supported by
substantial evidence in the record. Thus, the district court did not abuse its
discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (per curiam).
Nor did the district court violate Federal Rule of Criminal Procedure 32 or
due process. Hacµ waived his objections to the Presentence Investigation Report
by not filing timely and specific objections within 14 days, Fed. R. Crim. P.
32(f)(1), and he failed to provide countervailing evidence to create any specific
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disputes regarding the accuracy of the evidence. United States v. Stoterau, 524
F.3d 988, 1011-12 (9th Cir. 2008). For the same reason, it was not an abuse of
discretion by the district court to choose not to hold an evidentiary hearing; Hacµ
was given the opportunity to rebut the Presentence Investigation Report both in
writing and at sentencing, so no separate evidentiary hearing was required. United
States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001).
The sentence was supported by reliable evidence, and, therefore, did not
violate Hacµ's due process rights. United States v. Petty, 982 F.2d 1365, 1369 (9th
Cir. 1993); see also United States v. Hucµins, 53 F.3d 276, 279 (9th Cir. 1995).
In light of United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010),
the condition of supervised release prohibiting Hacµ from associating with
'persons associated with the Hammersµin, Christian Identity Sµins, or any other
sµinhead gang, with the exception of his family members' was error. As in
Johnson, we remand this portion of the supervised release conditions so that the
district court may 'consider whether substitute language would be appropriate.'
Id.3
The other terms and conditions of Hacµ's supervised release are not vague
or overbroad, do not deprive him of more liberty than necessary, and are directly
grounded in the goals of y 3553(a). See United States v. Vega, 545 F.3d 743, 749
(9th Cir. 2008); United States v. Soltero, 510 F.3d 858, 866-67 (9th Cir. 2007) (per
curiam).
AFFIRMED in part, and REMANDED in part.
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