United States v. Robert Longee , 407 F. App'x 122 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
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. 10-30085
Plaintiff - Appellee, D.C. No. CR 09-65-GF-SEH
v.
MEMORANDUM *
ROBERT GLENN LONGEE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted December 6, 2010**
Seattle, Washington
Before: BEEZER, O’SCANNLAIN, and PAEZ, Circuit Judges.
On May 28, 2009, the United States charged Robert Glenn Longee with
aggravated sexual abuse in violation of 18 U.S.C. §§ 1153(a) and 2241(a). Longee
*
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).
was accused of violently raping his mother-in-law, who was 63 years old at the
time, and confined to a wheelchair. After a jury found Longee guilty, the district
judge imposed a term of life imprisonment. Longee appeals his sentence and the
district court’s decision not to declare a mistrial.
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291, and we
affirm the district court.
The facts of this case are known to the parties. We do not repeat them.
I
Appellate review of sentencing decisions “is limited to determining whether
they are ‘reasonable.’” Gall v. United States, 552 U.S. 38, 46 (2007). When
conducting a review for “reasonableness,” courts of appeal consider all sentences
“under a deferential abuse-of-discretion standard.” Id. at 41. To determine
substantive reasonableness, this court considers “the totality of the circumstances.”
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). A within-Guidelines
sentence is not presumptively reasonable. Id. at 993.
A district court’s denial of a motion for a mistrial is reviewed for abuse of
discretion. United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008).
II
Longee first claims that the district court abused its discretion by failing to
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adequately explain the sentence and by imposing a substantively unreasonable
sentence. When reviewing a sentencing decision this court will first review the
determination for procedural error, before addressing whether the sentence is
substantively reasonable. United States v. Ressam, 593 F.3d 1095, 1115-16 (9th
Cir. 2010).
A court commits procedural error by not fully explaining the sentence
selected. Carty, 520 F.3d at 993. During sentencing district courts should provide
“defendant-specific reasons for imposing a certain sentence.” United States v.
Delgado, 357 F.3d 1061, 1071 (9th Cir. 2004). However, “[a] within-Guidelines
sentence ordinarily needs little explanation . . . . because both the Commission and
the sentencing judge have determined that the sentence comports with the
§ 3553(a) factors.” Carty, 520 F.3d at 992.
Here, the sentencing judge adequately explained Longee’s sentence. The
judge began by properly calculating the Guidelines range, addressing the relevant
§ 3553(a) factors, and reflecting on the seriousness of the offense. The judge then
directly referenced defense counsel’s claims by stating that Longee’s “history and
characteristics[] have been fully weighed and considered. Some of that history has
been included in counsel’s remarks.” ER 99.
Longee also argues that a lifetime sentence, although within the Guidelines
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recommendation, is substantively unreasonable. Although within-Guidelines
sentences are not presumptively reasonable, this court does “recognize that a
correctly calculated Guidelines sentence will normally not be found unreasonable
on appeal.” Carty, 520 F.3d at 988.
Longee claims that his “history and characteristics” render the sentence
substantively unreasonable. However, Longee does not explain how or why his
personal history affects his culpability, or how this history renders a Guidelines
sentence unreasonable.
Longee also argues that a life-term is “longer than necessary” to achieve the
statutory purposes of punishment. But Longee has not demonstrated “how, in light
of the totality of the circumstances, the district court abused its discretion,” United
States v. Crowe, 563 F.3d 969, 978 (9th Cir. 2009), especially given the district
court’s thorough explanation and the danger that Longee poses to the community.
See United States v. Vanderwerfhorst, 576 F.3d 929, 937 (9th Cir. 2009).
III
Longee also argues that the district court erred by not declaring a mistrial
after the jury indicated that it was deadlocked. This court considered a similar
appeal in United States v. Green, 962 F.2d 938 (9th Cir. 1992). There the court
stated that it “accord[s] great deference to a trial judge’s decision whether to
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declare a mistrial because of jury deadlock.” 962 F.2d at 944. Given that the jury
had only deliberated for a few hours, the district court did not abuse its discretion
by ordering the jury to deliberate longer. See United States v. Sommerstedt, 752
F.2d 1494, 1498 (9th Cir. 1985) (affirming a district court’s decision not to declare
a mistrial and instead to order the jury to deliberate for an additional full day).
AFFIRMED.
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