United States of America v. Robert Gene Rand

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT GENE RAND,
Defendant-Appellant.
No. 17-10510
D.C. No. 3:16-cr-00029-MMD
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted February 8, 2019
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and FEINERMAN,** District Judge.
Robert Gene Rand appeals his 96-month sentence for involuntary
manslaughter (“Count One”), 18 U.S.C. § 1112(a), and 120-month sentence for
distribution of a controlled substance (“Count Two”), 21 U.S.C. § 841(a)(1),
(b)(1)(C). 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 Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The appellate waiver in Rand’s plea agreement does not preclude
consideration of the merits of his appeal. The government concedes that Rand may
appeal his sentence for Count One. We hold he also may appeal his sentence for
Count Two. The appellate waiver was confusing and internally inconsistent, and
the district court’s colloquy with the parties at the plea hearing illustrated and
added to the confusion. See United States v. Spear, 753 F.3d 964, 968 (9th Cir.
2014) (“We have steadfastly applied the rule that any lack of clarity in a plea
agreement should be construed against the government as drafter.”) (internal
quotation marks and brackets omitted). Moreover, the district court told Rand that
he could appeal his sentence, rendering unenforceable any waiver. See United
States v. Arias-Espinosa, 704 F.3d 616, 618 (9th Cir. 2012) (“We have held that a
district court’s clear statement that a defendant has the right to appeal renders
unenforceable the defendant’s prior waiver of this right in a plea agreement.”).
On the merits, the district court’s holding that Rand failed to meet his burden
of proving that he qualified for an acceptance of responsibility reduction under
U.S.S.G. § 3E1.1 was not clearly erroneous. See United States v. Rodriguez, 851
F.3d 931, 949 (9th Cir. 2017) (explaining the burden and standard of review); see
also Cox v. Dep’t of Soc. & Health Servs., 913 F.3d 831, 840 (9th Cir. 2019)
(“[W]e may affirm on any ground supported by the record, even if it differs from
the district court’s rationale.”). “[F]alsely den[ying], or frivolously contest[ing],

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relevant conduct that the court determines to be true” is “inconsistent with
acceptance of responsibility,” U.S.S.G. § 3E1.1 cmt. n.1(A), as is “plac[ing]
responsibility on others” for one’s unlawful actions, United States v. Doe, 778 F.3d
814, 827 (9th Cir. 2015); see also United States v. Osinger, 753 F.3d 939, 949 (9th
Cir. 2014). During his safety valve proffer and in his sentencing memorandum,
Rand falsely denied or frivolously contested offense conduct by stating that he
believed at the time that his prescribing practices were reasonable. Those
statements also reflected an attempt to shift blame for his criminal conduct onto his
patients. It does not matter whether Rand’s statements contested the specific
examples of unlawful conduct set forth in his plea agreement, as those examples
were illustrative, not exhaustive.
The district court’s holding that Rand failed to accept responsibility under
U.S.S.G. § 3E1.1 is not inconsistent with its finding that Rand truthfully provided
information to the government for purposes of safety valve relief under 18 U.S.C.
§ 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5). Among other explanations for the
different results, acceptance of responsibility turns on contrition for the charged
offense, such that failing to “admit[] the conduct comprising the offense(s) of
conviction” is not acceptance. U.S.S.G. § 3E1.1. That remains the case even if the
defendant’s proffered alternative account is truthful, and thus qualifies him for
safety valve relief. See U.S.S.G. § 5C2.1(a)(5) (providing that a defendant

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qualifies for safety valve relief only if she “has truthfully provided to the
Government all information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a common scheme or
plan”); United States v. Rangel-Guzman, 752 F.3d 1222, 1226-27 (9th Cir. 2014).
Because the district court reasonably held that Rand had not accepted
responsibility, the government did not breach the plea agreement by arguing
against the acceptance of responsibility reduction.
AFFIRMED.

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