United States v. Richard Wuerfel

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50305
Plaintiff - Appellee, D.C. No. 2:11-cr-00262-GHK
v.
MEMORANDUM*
RICHARD ALBERT WUERFEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges.
Richard Albert Wuerfel appeals from the district court’s judgment and
challenges the 72-month sentence imposed following his guilty-plea conviction for
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Wuerfel contends that the district court erred by failing to consider his
sentencing arguments and the 18 U.S.C. § 3553(a) factors adequately, and to explain
the sentence. This claim fails. The record reflects that the court considered the
section 3553(a) factors and Wuerfel’s arguments, and thoroughly explained the
sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Wuerfel next contends that the district court erred by applying an obstruction
of justice enhancement under U.S.S.G. § 3C1.1. In light of the record, including
Wuerfel’s statement at the sentencing hearing, the district court did not clearly err in
concluding that Wuerfel acted willfully to obstruct justice. See United States v.
Gardner, 988 F.2d 82, 83 (9th Cir. 1993) (per curiam).
Lastly, Wuerfel contends that his sentence is substantively unreasonable.
He argues that the Guidelines range was unreasonable in view of the mitigating
factors surrounding his decision to abscond and the alleged excessiveness of the
child pornography sentencing enhancements. The district court took into account
Wuerfel’s policy challenge to the child pornography Guidelines and his mitigating
circumstances. The below-Guidelines sentence is substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 14-50305