United States of America v. James Garner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES GARNER,
Defendant - Appellant.
No. 12-10403
D.C. No. 3:11-cr-00114-LRH-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted October 11, 2013
San Francisco, California
Before: WALLACE, M. SMITH, and IKUTA, Circuit Judges.
Garner appeals from his sentence for mail fraud, in violation of 18 U.S.C.
§ 1341, on the grounds that the sentence was procedurally flawed and substantively
unreasonable. We have jurisdiction under 28 U.S.C. § 1291.
FILED
OCT 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Even assuming the district court made the factual errors identified by
Garner, it is clear that no prejudice resulted from such errors. The district court
focused primarily on the evidence of Garner’s recidivism, and imposed a sentence
it deemed reasonable to deter future offenses. Cf. United States v. Cruz-Gramajo,
570 F.3d 1162, 1167 (9th Cir. 2009). Because the sentence was not based on false
or unreliable information, no due process violation occurred. See United States v.
Vanderwerfhorst, 576 F.3d 929, 935–36 (9th Cir. 2009). The district court
reasonably concluded that the government had carried its burden of proving
sentencing facts by a preponderance of the evidence, and its statements that Garner
failed to rebut the evidence presented by the government did not shift the burden of
proof to Garner.
Finally, the district court properly weighed the factors set out in 18 U.S.C.
§ 3553(a), and did not significantly overvalue the impact of Garner’s immediate
recidivism. The sentence imposed was therefore not substantively unreasonable.
See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc).
AFFIRMED.
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