United States v. Mark Arneson ( 2019 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        FEB 13 2019
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    17-50396
    Plaintiff-Appellee,             D.C. No.
    2:05-cr-01046-DSF-7
    v.
    MARK ARNESON,                                   MEMORANDUM*
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Dale S. Fischer, District Judge, Presiding
    Submitted February 11, 2019**
    Pasadena, California
    Before: D.W. NELSON, CALLAHAN, and OWENS, Circuit Judges.
    Mark Arneson appeals from his sentence imposed on remand for his
    convictions for violation of the Racketeer Influenced Corrupt Organizations Act
    (“RICO”), RICO conspiracy, honest-services wire fraud, and identity theft. We
    previously affirmed Arneson’s foregoing convictions, vacated his other
    *
    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).
    convictions, and remanded for resentencing. See United States v. Christensen, 
    828 F.3d 763
    , 776 (9th Cir. 2015); United States v. Christensen, 624 F. App’x 466,
    473-74 (9th Cir. 2015). As the parties are familiar with the facts, we do not
    recount them here. We review a district court’s interpretation of the Sentencing
    Guidelines de novo, its application of the Guidelines to the facts for abuse of
    discretion, and its factual findings for clear error. Christensen, 828 F.3d at 815.
    We affirm.
    Arneson argues that his 121-month sentence is substantively unreasonable
    because the district court’s six-level upward departure under U.S.S.G. § 5K2.0:
    (1) was based on impermissible double counting; (2) was based on insufficient
    factual findings of obstruction; and (3) created an unwarranted sentencing
    disparity. See id. at 819 (considering an upward departure under § 5K2.0 “as part
    of . . . a sentence’s substantive reasonableness,” which is reviewed for abuse of
    discretion). We are not persuaded.
    First, the district court did not engage in impermissible double counting by
    imposing both a six-level departure under § 5K2.0 and a two-level enhancement
    for obstruction of justice under § 3C1.1. Contrary to Arneson’s characterization,
    the six-level departure under § 5K2.0 was based not only on Arneson’s
    obstruction, but also on other factors such as his breach of public trust and harm to
    the victims. Moreover, to the extent that the district court relied on Arneson’s
    2
    obstruction for the six-level departure under § 5K2.0, the district court did not
    abuse its discretion in determining that this case was substantially more egregious
    than ordinary cases of obstruction. See U.S.S.G. § 5K2.0 (Nov. 2001) (providing
    that where “the applicable offense guideline and adjustments do take into
    consideration a factor listed in this subpart, departure from the applicable guideline
    range is warranted only if the factor is present to a degree substantially in excess of
    that which ordinarily is involved in the offense”); United States v. Ward, 
    914 F.2d 1340
    , 1348 (9th Cir. 1990) (stating that a district court may depart upward under
    § 5K2.0 to address obstruction that is “significantly more egregious than the
    ordinary cases of obstruction listed in the application notes to § 3C1.1, of which
    the Commission has taken full account”).
    Second, the record shows that the district court made sufficient factual
    findings of obstruction to support the six-level upward departure under § 5K2.0.
    Contrary to Arneson’s contentions, the district court did not clearly err in finding
    that Arneson’s testimony regarding bankruptcy and being on a plane was
    perjurious. See United States v. Jimenez, 
    300 F.3d 1166
    , 1170 (9th Cir. 2002)
    (stating that a district court’s determination that the defendant “obstructed justice is
    a factual finding reviewed for clear error”).
    Finally, the six-level upward departure did not create an unwarranted
    sentencing disparity. See 
    18 U.S.C. § 3553
    (a)(6) (stating that a court should
    3
    consider “the need to avoid unwarranted sentence disparities among defendants
    with similar records who have been found guilty of similar conduct”). For
    example, the district court did not clearly err in finding that Arneson was not
    similarly situated to co-defendant Craig Stevens. See United States v. Ressam, 
    679 F.3d 1069
    , 1094-95 (9th Cir. 2012) (en banc) (stating that co-defendants who
    engaged in lesser acts, were convicted of different crimes, or pled guilty were not
    appropriate comparisons under § 3553(a)(6)).
    In sum, Arneson’s 121-month sentence is substantively reasonable and the
    district court did not abuse its discretion by imposing it.
    AFFIRMED.
    4
    

Document Info

Docket Number: 17-50396

Filed Date: 2/13/2019

Precedential Status: Non-Precedential

Modified Date: 2/13/2019