United States v. Kenneth Leaming

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30049
Plaintiff-Appellee, D.C. No.
3:12-cr-05039-RBL-1
v.
KENNETH WAYNE LEAMING, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 16, 2017**
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
Kenneth Leaming appeals the 97-month sentence imposed on remand
following his conviction for filing false liens against government officials,
harboring fugitives, and being a felon in possession of a firearm. We have
*
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).
jurisdiction under 28 U.S.C. § 1291 and review for abuse of discretion procedural
errors in sentencing and the substantive reasonableness of a sentence. United
States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010). We affirm.
This is the third time we have considered Leaming’s sentence. We first
vacated his sentence and remanded because the district court erroneously applied
an enhancement under U.S.S.G. § 2A6.1(b)(1). We remanded again after the
district court eliminated the enhancement on two counts but not on a related third
count. The district court then eliminated the enhancement on all three counts, but
applied an unrelated enhancement under § 3A1.2(b) to correct an error in its initial
Guidelines calculation that the parties and the court previously overlooked. In this
appeal, Leaming does not dispute that the § 3A1.2(b) enhancement applies, but
argues that the district court was without authority to correct its error. He also
claims that his above-range sentence is substantively unreasonable.
A district court resentencing on remand may generally “consider any matters
relevant to sentencing, even those that may not have been raised at the first
sentencing hearing, as if it were sentencing de novo.” United States v. Matthews,
278 F.3d 880, 885–86 (9th Cir. 2002). Although a district court must execute the
terms of our mandate when we clearly limit the scope of a remand, “the rule of
2
mandate allows a lower court to decide anything not foreclosed by the mandate.”
Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012).
Our most recent mandate instructed the district court to eliminate the
§ 2A6.1(b)(1) enhancement on all relevant counts. The mandate was silent as to
any other enhancements, and nothing in our remand order precluded the district
court from correcting additional errors in its Guidelines calculation. On remand,
the district court eliminated the six-level enhancement under § 2A6.1(b)(1)
pursuant to our mandate, and it applied an unrelated six-level enhancement under
§ 3A1.2(b) to correct an error in its initial Guidelines calculation. This was not an
abuse of discretion. See United States v. Washington, 172 F.3d 1116, 1117–19
(9th Cir. 1999). Additionally, we previously foreclosed Leaming’s double-
counting argument, United States v. Leaming, 596 F. App’x 535, 536 (9th Cir.
2015), and the law-of-the-case doctrine did not preclude the district court’s
§ 3A1.2(b) enhancement because our decisions in Leaming’s first two appeals
never addressed whether § 3A1.2(b) applied to his Guidelines calculation.
We also do not presume that an above-range sentence is substantively
unreasonable solely because it falls outside the Guidelines range. Spangle, 626
F.3d at 498. Instead, we must “consider the totality of the circumstances, including
3
the degree of variance for a sentence imposed outside the Guidelines range . . .
[and] ‘give due deference to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.’” United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The district court articulated its rationale for imposing the above-range
sentence and stated that its § 3553(a) analysis had not changed since the previous
sentencing hearing. The court reiterated its view that Leaming “present[s] a real
danger to the community” and had committed “a very serious offense” that created
“a need for the court to demand respect for the rule of law, to avoid disparity in
sentencing, and to deter criminal activity of this nature by [Leaming], or other like-
minded people.” The court compared Leaming with his co-defendant to contrast
each defendant’s role in the conspiracy, not to achieve sentence parity. See United
States v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007). Under these
circumstances, the district court adequately substantiated its reasoning for
imposing an above-range sentence and committed no legal error. See Carty, 520
F.3d at 993.
AFFIRMED.
4