United States v. Danilo Velasquez ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10104
Plaintiff-Appellee, D.C. No.
3:08-cr-00730-WHA-33
v.
DANILO ARTURO VELASQUEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted August 14, 2023**
San Francisco, California
Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District
Judge.
Danilo Arturo Velasquez appeals the district court’s judgment reimposing a
life sentence after vacatur of one of Velasquez’s four convictions on RICO-related
*
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 John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
charges. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in all
respects.
1. “We review for abuse of discretion a district court’s denial of a motion to
unseal, reversing only if the denial was ‘illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.’” United States v.
Perez, 962 F.3d 420, 434 (9th Cir. 2020) (footnote and citations omitted) (quoting
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)). Here,
the district court acted well within its discretion when it denied Velasquez’s
request for “attorney’s eyes only” access to the sealed resentencing transcript of a
codefendant after weighing counsel’s asserted need for the transcript against the
reasons the transcript was sealed.1 And having conducted an in camera review of
the sealed transcript as requested by Velasquez, we find that any error in denying
access was indeed harmless.
2. “We review the substantive reasonableness of a sentence imposed by the
district court ‘under an abuse-of-discretion standard,’ ‘and will provide relief only
in rare cases.’” United States v. Wilson, 8 F.4th 970, 977 (9th Cir. 2021) (per
curiam) (citations omitted) (first quoting Gall v. United States, 552 U.S. 38, 51
(2007); and then quoting United States v. Ressam, 679 F.3d 1069, 1088 (9th Cir.
1
We would reach the same conclusion under Velasquez’s proposed
“special need” standard.
2
2012) (en banc)). Velasquez argues that the reimposed life sentence is
substantively unreasonable because it resulted in an unwarranted disparity between
his sentence and those of several of his coparticipants. We find no abuse of
discretion. The district court duly considered Velasquez’s sentencing-disparity
argument and found it unpersuasive after rationally and meaningfully evaluating
the 18 U.S.C. § 3553(a) factors, including the unique characteristics of Velasquez
and his coparticipants and the nature and circumstances of their conduct. The
court did not penalize Velasquez for exercising his Fifth Amendment right to trial
and appeal rather than entering a guilty plea like some of his coparticipants.
AFFIRMED.
3