United States v. Michael Shinefield ( 2012 )

FILED
NOT FOR PUBLICATION MAY 16 2012
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. 10-50386
Plaintiff - Appellee, D.C. No. 2:08-cr-01310-ODW-1
v.
MEMORANDUM *
MICHAEL LOUIS SHINEFIELD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted May 8, 2012 **
Pasadena, California
Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.
Michael Louis Shinefield appeals the sentence imposed by the district court
following his guilty plea to wire fraud, aiding and abetting, and causing an act to
*
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).
be done, in violation of 18 U.S.C. §§ 1343 and 2. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
1. The district court did not abuse its discretion in ordering the sentence to run
consecutively to the sentence imposed by the California state court. See United
States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005); U.S.S.G. § 5G1.3 cmt. n.
3(C).
2. The record reflects that the district court was aware that it was applying a
vulnerable victim enhancement. The court was not required to make further
findings because the presentence reports contained sufficient undisputed facts to
establish that Shinefield knew or should have known that some of his investors had
fallen for the scheme before, and were therefore vulnerable to being “reloaded.”
See United States v. Luca, 183 F.3d 1018, 1025 (9th Cir. 1999). Finally, the
enhancement was proper because “reloaded” victims are more vulnerable than
typical victims of wire fraud. See United States v. Castaneda, 239 F.3d 978,
980–81 & n.4 (9th Cir. 2001); United States v. Randall, 162 F.3d 557, 560 (9th
Cir. 1998).
3. The district court did not treat Shinefield’s inability to pay restitution as an
aggravating factor. The record assures us that “the district court did not weigh this
factor in the balance.” United States v. Burgum, 633 F.3d 810, 816 (9th Cir. 2011).
2
4. The district court did not lengthen Shinefield’s sentence to promote
rehabilitation. Its statements merely discussing rehabilitation were proper. See
Tapia v. United States, 131 S. Ct. 2382, 2387, 2392–93 (2011).
5. Nor did the district court plainly err by relying on clearly erroneous facts.
First, the district court expressly counted Shinefield’s bipolar disorder as a
mitigating factor. Second, the district court’s view that Shinefield’s participation
in the AARP video was an “effort to game the system” was reasonable in light of
Shinefield’s past conduct. See United States v. Hinkson, 585 F.3d 1247, 1263 (9th
Cir. 2009) (en banc). Third, the district court’s misstatement of the victims’ total
losses was not prejudicial because the Guidelines calculation accurately included
only a 20–level enhancement for losses. U.S.S.G. § 2B1.1(b)(1)(K).
6. The district court did not fail to consider Shinefield’s argument that his
mental illness contributed to the offense. Rather, the district court expressly
enumerated these illnesses as mitigating factors, but ultimately issued an upward
variance. Because the context and record “make[] clear that the sentencing judge
considered the evidence and arguments, we do not believe the law requires the
judge to write more extensively.” Rita v. United States, 551 U.S. 338, 359 (2007).
3
7. The district court did not fail to consider “the need to avoid unwarranted
sentence disparities among” similarly situated defendants, but rather contemplated
and rejected this concern.
8. Shinefield’s sentence is substantively reasonable. The district court
expressly weighed the mitigating factors and granted the government’s § 5K1.1
motion. Nonetheless, the district court reasonably found that certain factors were
not entitled to much weight. Meanwhile, the district court placed appropriate
weight on Shinefield’s criminal history score.
9. The district court did not violate Rule 32(i)(3)(B) of the Federal Rules of
Criminal Procedure. Neither the diagnostician’s use of outdated nomenclature nor
Shinefield’s remaining objections trigger Rule 32 because they do not involve
specific factual disputes affecting the temporal term of Shinefield’s sentence. See
United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008).
10. The conditions of supervised release relating to employment do not give rise
to plain error. See United States v. Rearden, 349 F.3d 608, 618 (9th Cir. 2003). A
“reasonably direct relationship” existed between Shinefield’s pre-conviction
occupations and the offense conduct. U.S.S.G. § 5F1.5(a)(1). Given Shinefield’s
criminal history, the district court reasonably inferred that if Shinefield were
permitted to return to his previous jobs, he would again defraud his customers or
4
employers. We therefore conclude that Conditions Nine and Ten were “reasonably
necessary” to protect the public, § 5F1.5(a)(2), and were not broader than
“reasonably necessary.” See Rearden, 349 F.3d at 618; United States v. Watson,
582 F.3d 974, 984–85 (9th Cir. 2009). The district court’s failure to articulate its
reasons for the conditions does not warrant reversal. See United States v. Daniels,
541 F.3d 915, 924 (9th Cir. 2008).
For the above reasons, we AFFIRM the district court’s sentence and
AFFIRM the conditions of supervised release.
AFFIRMED.
5