United States v. Nicholas Bickle , 566 F. App'x 589 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 31 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10386
Plaintiff-Appellee, D.C. No. 2:10-cr-565-RLH-PAL
District of Nevada
v.
MEMORANDUM*
NICHOLAS BICKLE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted March 14, 2014
San Francisco, California
Before: WALLACE, GOULD, Circuit Judges, and HUCK, District Judge.**
Nicholas Bickle, a former United States Navy SEAL, was convicted of
thirteen counts related to illegally importing and selling military firearms. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul C. Huck, District Judge for the U.S. District
Court for the Southern District of Florida, sitting by designation.
district court sentenced him to 210 months imprisonment. Bickle challenges his
sentence as unreasonable, arguing that the district court failed to grant a downward
departure and variance based on his suffering a military discharge and his service-
related disability, and that the district court violated Apprendi v. New Jersey, 530
U.S. 466 (2000), by enhancing his sentence based on the number of weapons
involved in his crimes.
We review the district court’s interpretation of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v. Swank, 676 F.3d 919,
921 (9th Cir. 2012). There is an intracircuit conflict as to whether the standard of
review for application of the Guidelines to the facts is de novo or abuse of
discretion. Id. at 921-22. Where the standard of review is not case dispositive, there
is no need for us to resolve the conflict. Id. at 922. We review Bickle’s actual
sentence for procedural and substantive reasonableness, under an abuse of
discretion standard. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). We review Bickle’s Apprendi claim de novo, because he raised it before the
district court. United States v. Dare, 425 F.3d 634, 638 (9th Cir. 2005). We have
jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and
affirm.
The district court did not abuse its discretion in its consideration of the effect
of Bickle’s military discharge. The district court stated it gave careful
consideration to the memorandum filed by defendant’s counsel, which included
information and argument about Bickle’s discharge. Thus, the district court did not
commit procedural error. United States v. Daniels, 541 F.3d 915, 921–22 (9th Cir.
2008). Nor did the district court abuse its discretion in not departing or granting a
variance from the Sentencing Guidelines. United States v. Asberry, 394 F.3d 712,
720 (9th Cir. 2005); see also United States v. Ruiz-Apolonio, 657 F.3d 907, 916
(9th Cir. 2011).
The district court did not err in refusing to depart from the Sentencing
Guidelines because of Bickle’s post-traumatic stress disorder. Bickle argued before
the district court and here that his service-related condition gave him diminished
mental capacity. The district judge found nothing in the record to support Bickle’s
argument that he suffered from diminished capacity because of his military service,
and thus during commission of his offenses, rather than because of his arrest after
commission of the offenses. Regardless, Bickle carefully planned his crimes. Post-
traumatic stress disorder may mitigate culpability for spontaneous criminal
conduct, but usually cannot mitigate culpability for carefully planned
conspiratorial conduct like these crimes. The district court thus did not err by
refusing to depart from the Sentencing Guidelines. Asberry, 394 F.3d at 720.
We also affirm the district court to the extent Bickle challenges the jury
instruction as improper because the instruction correctly allowed the jury to
convict him based on a disjunctive charge. Turner v. United States, 396 U.S. 398,
420–21 (1970) (“when a jury returns a guilty verdict on an indictment charging
several acts in the conjunctive . . . the verdict stands if the evidence is sufficient
with respect to any one of the acts charged”).
Finally, the district court did not violate Apprendi by assessing a sentence
enhancement for the number of weapons Bickle trafficked. The district court
instructed the jury that it only needed to find that Bickle committed the offense
with respect to a single weapon, which, he argues, means the judge made factual
findings that additional weapons were involved. Bickle’s 210-month sentence does
not exceed the statutory maximum for his crimes, so application of the
enhancement did not violate Apprendi. United States v. Chavez, 611 F.3d 1006,
1009 (9th Cir. 2010); 18 U.S.C. § 924(a)(2) (“Whoever knowingly violates
subsection . . . (j), or (o) of section 922 shall be . . . imprisoned not more than 10
years . . . ”).
AFFIRMED.