United States v. Zachary Hicks ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10161
Plaintiff-Appellee, D.C. No. 2:16-cr-00246-GEB
v.
MEMORANDUM*
ZACHARY WILLIAM HICKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Zachary William Hicks appeals from the district court’s judgment and
challenges the 100-month sentence imposed following his guilty-plea conviction
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Hicks contends that the district court procedurally erred by failing to
consider his sentencing arguments and mitigating circumstances. We review for
plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and conclude that there is none. The record demonstrates that the district
court considered all of the arguments and mitigating evidence; it was not required
to address explicitly each mitigating circumstance and each 18 U.S.C. § 3553(a)
sentencing factor to show that it had considered them. See United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc); United States v. Perez-Perez, 512
F.3d 514, 516-17 (9th Cir. 2008).
Hicks also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The sentence at the low end of the applicable Guidelines range is
substantively reasonable in light of the section 3553(a) sentencing factors and the
totality of the circumstances. See id.
Finally, Hicks claims that his counsel rendered ineffective assistance by
inadequately highlighting his mitigating circumstances. We decline to consider
this claim on direct appeal. See United States v. Rahman, 642 F.3d 1257, 1259-60
(9th Cir. 2011). Hicks may raise this claim in a 28 U.S.C. § 2255 proceeding. See
United States v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012).
AFFIRMED.
2 18-10161