United States v. William Nielsen , 551 F. App'x 933 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-30378
Plaintiff - Appellee, D.C. No. 9:11-cr-00008-DWM-1
v.
MEMORANDUM*
WILLIAM RICHARD NIELSEN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 4, 2013**
Seattle, Washington
Before: O’CONNOR, Associate Justice (Ret.),*** and TALLMAN and BEA,
Circuit Judges.
*
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).
***
The Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the
United States Supreme Court, sitting by designation.
Defendant-Appellant, William Richard Nielsen, appeals his sentence of 480
months for violating 18 U.S.C. § 2422(b). We affirm the district court.
Nielsen pleaded guilty to coercing and enticing a minor in violation of 18
U.S.C. § 2422(b). His sentence was vacated by this court. United States v.
Nielsen, 694 F.3d 1032 (9th Cir. 2012). On remand, the district court considered
the recommended sentence range of 188–235 months, calculated under U.S.
Sentencing Guidelines Manual § 2G1.3. The district court exceeded that range and
imposed a sentence of 480 months’ imprisonment followed by a lifetime term of
supervised release. Nielsen contends (1) that the district court erred in failing to
consider a cross-reference to U.S. Sentencing Guidelines Manual § 2A3.1
contained within § 2G1.3 and (2) that his sentence is not substantively reasonable.
U.S. Sentencing Guideline § 2G1.3(c)(3) provides that if “the offense
involved conduct described in 18 U.S.C. § 2241 or § 2242, apply § 2A3.1
(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), if the
resulting offense level is greater than that determined [under U.S. Sentencing
Guidelines Manual § 2G1.3].” Here, the district court did not plainly err in failing
to discuss or apply the cross-reference to § 2A3.1. Assuming without deciding that
Nielsen’s offense of enticing a minor from her home in Wyoming to Montana in
violation of 18 U.S.C. § 2422(b) involved conduct described in § 2241 or § 2242,
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triggering the possible application of the cross-reference,1 we are confident that no
plain error occurred because Nielsen cannot show that any error would have
affected his substantial rights. United States v. Olano, 507 U.S. 725, 734–35
(1993). If anything, as Nielsen conceded in his opening brief, he benefitted from
any potential district court error—his total offense level would have been higher
had the cross-reference applied. There was no effect on Nielsen’s substantial
rights and no plain error. Id.Nor did the district court abuse its discretion in imposing a sentence of 480
months. This court reviews the substantive reasonableness of a sentence for abuse
of discretion. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en
banc). Here, the district court properly considered the sentencing factors
enumerated in 18 U.S.C. § 3553(a). Because we conclude that the sentence of 480
months’ imprisonment is not illogical, implausible, or without support in
inferences that may be drawn from the record, United States v. Hinkson, 585 F.3d
1247, 1262–63 (9th Cir. 2009) (en banc), we affirm Nielsen’s sentence.
AFFIRMED.
1
The cross-reference would only apply if Nielsen’s conduct amounted to
aggravated sexual abuse in violation of 18 U.S.C. § 2241; conduct amounting to a
violation of 18 U.S.C. § 2242 would not result in a greater offense level under U.S.
Sentencing Guidelines Manual § 2A3.1 than it would under § 2G1.3, so the cross-
reference would not apply.
3