United States v. Warren Armstead

FILED
NOT FOR PUBLICATION MAR 15 2011
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. 09-30298
Plaintiff - Appellee, D.C. No. 2:04-cr-00512-JLR-1
v.
MEMORANDUM *
WARREN ERIC ARMSTEAD,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted March 7, 2011
Seattle, Washington
Before: McKEOWN, FISHER and GOULD, Circuit Judges.
Warren Eric Armstead appeals the within-Guidelines, 175-month sentence
imposed following his conviction on one count of conspiracy to commit bank fraud
and nine counts of substantive bank fraud. We affirm.
1. The district court properly denied Armstead’s request for a two-level
adjustment for acceptance of responsibility because Armstead steadfastly refused
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to accept responsibility for his leadership role in the conspiracy, even after
conviction. See United States v. Schales, 546 F.3d 965, 976 (9th Cir. 2008) (“A
defendant is entitled to a downward adjustment if he clearly accepts responsibility
for all of his relevant conduct.”); see also United States v. McKinney, 15 F.3d 849,
853 (9th Cir. 1994) (“Where the defendant’s statements and conduct make it clear
that his contrition is sincere, . . . he is entitled to the reduction even if he is
convicted after a trial.” (emphasis added)).
2. The district court did not fail to consider 18 U.S.C. § 3553(a)(6). First, a
district court “need not tick off each of the § 3553(a) factors to show that it has
considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc). Second, the district court expressly discussed the issue of unwarranted
disparities during the sentencing hearing.
3. Armstead complains that the district court failed to adequately explain the
disparity between his sentence and that of four of his coconspirators who did not
cooperate with the government. A district court, however, need only explain its
reasons for rejecting “a specific, nonfrivolous argument tethered to a relevant
§ 3553(a) factor.” Carty, 520 F.3d at 992-93 (emphasis added). In the district
court, Armstead raised only a general argument that his sentence should be
proportionate to his eight coconspirators. Only on appeal does he specifically
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argue that his sentence is disproportionate to the four non-cooperating
coconspirators in particular. The district court’s explanation was adequate under
the circumstances.
4. The disparity between Armstead’s sentence and those of his
coconspirators does not render his sentence substantively unreasonable. See 18
U.S.C. § 3553(a)(6). Although the non-cooperating coconspirators received lower
sentences than Armstead, they are not similarly situated for purposes of
§ 3553(a)(6). See United States v. Carter, 560 F.3d 1107, 1121 & n.3 (9th Cir.
2009) (rejecting the defendant’s contention of unwarranted sentencing disparities
where the codefendants were either convicted of fewer offenses or cooperated with
the government).
5. Armstead’s excerpts of record contain government sentencing
memoranda and criminal judgments from 20 other criminal cases involving
defendants sentenced for bank fraud. Armstead contends that these documents
show that his sentence is substantively unreasonable by comparison. The
government has moved to strike Armstead’s evidence because it was not presented
to the district court. We grant the motion. See United States v. Elias, 921 F.2d
870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court
are not part of the record on appeal.”). Armstead’s contention that the evidence is
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properly included in the appellate record because it consists of documents filed in
other district court cases is without merit. See Kirshner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077-78 (9th Cir. 1988) (explaining that the record on appeal is
limited to materials placed before the district court). The government’s motion is
GRANTED. We therefore do not reach the merits of Armstead’s argument.
6. That the advisory sentences for bank fraud have increased in the past 24
years does not establish that the current advisory sentences are unreasonable.
Furthermore, although Armstead’s adjusted offense level reflects a 14-level
increase for a loss amount over $400,000, a 2-level increase for more than 10
victims, a 2-level increase for possession of more than five means of identification
and a 4-level increase for being a leader or organizer, the cumulative impact does
not constitute improper double counting because each provision serves a unique
purpose. See United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007). The
district court did not abuse its discretion by concluding that a within-Guidelines
sentence was “sufficient, but not greater than necessary, to comply with the
purposes” of sentencing. 18 U.S.C. § 3553(a).
7. Armstead’s contention that the district court imposed his sentence in
retaliation for exercising his constitutional right to trial is without merit. See
United States v. Narramore, 36 F.3d 845, 847 (9th Cir. 1994) (“Incentives for plea
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bargaining are not unconstitutional merely because they are intended to encourage
a defendant to forego constitutionally protected conduct.”).
AFFIRMED.
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