United States v. Frank White , 681 F. App'x 589 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30346
Plaintiff-Appellee, D.C. No.
4:14-cr-00252-BLW-1
v.
FRANK LEWIS WHITE, MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted February 9, 2017
Seattle, Washington
Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.
Appellant Frank Lewis White challenges his conviction and sentence for
being a felon in possession of a firearm. Following a jury trial, the district court
issued an 84-month sentence. White argues that the district court committed
reversible error by admitting into evidence a taped phone conversation between
White and his brother as an adoptive admission under Fed. R. Evid. 801(d)(2)(B).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
White also argues that his below-Sentencing Guidelines sentence is unreasonable
under the circumstances. We review both issues for abuse of discretion, United
States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004); United States v. Cruz-
Mendez, 811 F.3d 1172, 1175 (9th Cir. 2016), cert. denied, 137 S. Ct. 175 (2016),
and affirm.
In October 2014, White was arrested on two outstanding arrest warrants.
The officer who executed the arrest asked White if he had anything illegal on his
person, to which White responded that he had marijuana in his pocket and a
handgun underneath a seat of the car. A subsequent search revealed a 9mm
handgun under the driver’s seat. White was charged with violating 18 U.S.C.
§ 922(g)(1) for being a person who had previously been convicted of a crime
punishable by imprisonment for more than one year, and who “knowingly
possess[ed] in and affecting [interstate] commerce, a firearm . . . .” The offense
carries a maximum penalty of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2).
After his arrest, White spoke with his brother from jail. White was advised
that the call was being recorded. Over the course of the call, White’s brother told
him: “Yeah. I—I had a feeling that morning, man, when I was—remember, I
looked right at you. I said, ‘Leave the dog here and make sure you leave that
fucking gun here, man. I got a bad feeling about you going to town in the
daytime.’” White responded, “Well,” but his brother talked over him. The
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statement, if true, indicated that White knowingly possessed a firearm. White did
not deny or otherwise object to the statement at any point during the remainder of
the conversation. The district court admitted the conversation under Fed. R. Evid.
801(d)(2)(B) as an adoptive admission over defense counsel’s objection.
Under Fed. R. Evid. 801(d)(2)(B), “[w]hen an accusatory statement is made
in the defendant’s presence and hearing, and he understands and has an opportunity
to deny it, the statement and his failure to deny are admissible against him.”
United States v. Moore, 522 F.2d 1068, 1075 (9th Cir. 1975). Before such
statement may be admitted and considered by the jury, “the trial judge must
determine, as a preliminary question, whether the statement was such that under
the circumstances an innocent defendant would normally be induced to respond.”
Id.The district court made the requisite preliminary finding. The court
considered whether White heard, understood, and acceded to his brother’s
statement, and accounted for the context of the two men talking over each other. It
then determined that this factual circumstance was one in which an innocent party
“would normally be expected to contradict or deny the statement if it was not true.”
While the court’s explanation could have been more thorough, we hold that it
satisfied its gatekeeping obligation to decide whether “sufficient foundational facts
ha[d] been introduced for the jury reasonably to infer that [White] did hear and
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understand the statement,” and that White “did accede to the accusatory
statement.” Id. at 1076; see also United States v. Monks, 774 F.2d 945 (9th Cir.
1985) (upholding admission of incriminating statement where defendant’s response
was silence).
White also challenges his below-Guidelines sentence of 84 months. The
district court must accurately calculate the applicable Sentencing Guidelines range
(the parties do not dispute that it did so here), and then determine a sentence that
considers various statutory factors, including inter alia, the nature and
circumstances of the offense, the defendant’s history and characteristics, the
sentencing range under the guidelines, and the need to avoid sentencing disparities
with similarly situated individuals. United States v. Carty, 520 F.3d 984, 991 (9th
Cir. 2008) (citing 18 U.S.C. § 3553(a)).
White argues that the district court erred in settling on his ultimate sentence
by reasoning that a further downward departure could result in a sentencing
disparity with “another defendant who has essentially done the same type of
conduct as [] White, but who has no prior criminal record.” White reasons that his
Guidelines range of 100 to 120 months was based on a total offense level of 24 and
criminal history category of VI, both of which accounted for his criminal past. In
contrast, an individual with a less significant criminal history would likely have a
base offense level of 12, would be placed in a lower criminal history category, and
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would face a much lower Guidelines range. See U.S.S.G. §§ 2K2.1, 4A1.1. As a
result, White argues that the hypothetical sentencing disparity on which the district
court relied would not occur, and that his sentence is therefore substantively
unreasonable.
White’s argument is unavailing. Even were we to assume that the district
court committed procedural error by comparing White to someone with a
dissimilar criminal history, its below-Guidelines sentence is not substantively
unreasonable. See United States v. Ellis, 641 F.3d 411, 422–423 (9th Cir. 2011).
Because the district court “would be free on remand to impose exactly the same
sentence by exercising [its] discretion under the now-advisory guidelines,” what
ultimately matters for purposes of our review is substantive reasonableness, not
absolute fidelity to process. See id. at 421 (internal citation and quotation marks
omitted) (alteration in original); see also United States v. Mohamed, 459 F.3d 979,
987 (9th Cir. 2006) (“[I]t is the review for reasonableness, and not the validity of
the so-called departure [from the Guidelines], that determines whether the sentence
stands.”). Accordingly, we uphold the district court’s sentence.
AFFIRMED.
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