United States of America v. Anthony Pendleton

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for the Central District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY PENDLETON,
Defendant - Appellant.
No. 10-50338
D.C. No. 2:08-cr-00228-ODW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted November 18, 2011
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior
District Judge. **
Appellant Anthony Pendleton (Pendleton) appeals his sentence for
conspiracy to defraud the government by filing falsified tax returns. Pendleton
argues that the district court committed procedural error by imposing a sentence at
FILED
DEC 29 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the high end of the Guidelines range because of Pendleton’s purported failure to
admit guilt and by failing to consider that Pendleton had suffered abuse as a child
and had psychological issues. Pendleton also argues that the sentence was
substantively unreasonable in light of the fraud guideline and his low risk of
recidivism.
1. The district court did not commit procedural error by considering
Pendleton’s failure to admit responsibility to explain why Pendleton was not
entitled to a downward adjustment. See United States v. Rosas, 615 F.3d 1058,
1067 (9th Cir. 2010), as amended.
2. The district court considered the evidence Pendleton submitted regarding his
childhood abuse and psychiatric condition and sufficiently explained why it
rejected Pendleton’s argument that this evidence mandated a lower sentence. See
United States v. Apodaca, 641 F.3d 1077, 1081 (9th Cir. 2011) (“[N]o lengthy
explanation is necessary if the record makes it clear that the sentencing judge
considered the evidence and arguments.”) (citation omitted).

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3. Pendleton did not challenge the fraud guideline before the district court, and
the district court therefore did not commit plain error in sentencing Pendleton
under that guideline. See United States v. Ayala-Nicanor, 659 F.3d 744, 746-47
(9th Cir. 2011). Nor did the district court abuse its discretion. See United States v.
Carper, 659 F.3d 923, 925 (9th Cir. 2011) (explaining that the district court is not
obliged to “consider sua sponte whether it had discretion to make a downward
variance . . .”) (citation omitted).
4. Nor did the district court impose a substantively unreasonable sentence
because “the district court heard and considered [Pendleton]’s arguments,
contemplated the § 3553(a) factors, and reached an informed conclusion regarding
sentencing. . . .” United States v. Overton, 573 F.3d 679, 700 (9th Cir. 2009), as
amended.
AFFIRMED.

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