United States v. Johnson

MEMORANDUM^**

Appellant Paul B. Johnson (“Johnson”) appeals his sentence for multiple counts of bank fraud. We affirm.

Johnson alleges a technical violation of Fed. R.Crim. P. 32(i)(l)(A). Defense counsel’s memorandum and brief challenging the pre-sentence report in district court and his oral argument at sentencing establish that Johnson had read the pre-sentence report and discussed it with counsel. See United States v. Lewis, 880 F.2d 243, 245-46 (1989), abrogated on other grounds by Lazada v. Deeds, 964 F.2d 956 (9th Cir.1992). The district court’s failure to ask if Johnson had done so was therefore harmless. See United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir.1994).

The marital exception does not apply because Johnson had notice that his telephone call was monitored by prison authorities. See United States v. Marashi, 913 F.2d 724, 729 (9th Cir.1990). The district court’s finding that the purpose of Johnson’s call was to direct his wife to instruct another participant in the fraudulent scheme to he to investigators is not clearly erroneous. See United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002).

The district court’s conclusion that the call rendered him ineligible for an acceptance of responsibility reduction pursuant to U.S.S.G. § 3El.l(a), (b) and warranted an increase for obstruction of justice pursuant to U.S.S.G. § 3C1.1 was not clearly erroneous. See United States v. Sayetsitty, 107 F.3d 1405, 1410 (9th Cir.1997).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.