United States of America v. Joshua David Fink, a.k.a. David Joshua Fink, a.k.a. Wolverine

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA DAVID FINK, a.k.a. David
Joshua Fink, a.k.a. Wolverine,
Defendant-Appellant.
No. 16-50412
D.C. No. 2:16-cr-00168-SJO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Joshua David Fink appeals from the district court’s judgment and challenges
the concurrent 63-month sentences imposed following his guilty-plea convictions
for being a felon in possession of firearms and ammunition, in violation of 18
U.S.C. § 922(g)(1), and possession of an unregistered firearm, in violation of 26
* 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).
FILED
DEC 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-50412
U.S.C. § 5861(d). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Fink contends that the district court procedurally erred by failing to provide
an adequate explanation for its rejection of Fink’s argument that his criminal
history category overrepresented the seriousness of his criminal history. Because
Fink raises this contention for the first time on appeal, we review for plain error.
See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The
district court expressly discussed Fink’s argument regarding his criminal history
category and ultimately determined that a downward variance was not warranted
because the circumstances of Fink’s crimes of conviction demonstrated that he
posed a danger to the public. The record as a whole reflects the basis for the
district court’s determination, and the district court did not plainly err in its
explanation. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc) (“[A]dequate explanation in some cases may also be inferred from the PSR
or the record as a whole.”).
AFFIRMED.

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