United States of America v. Marcilin Anne Benvin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCILIN ANNE BENVIN,
Defendant-Appellant.
No. 16-10071
D.C. No.
3:11-cr-00099-LRH-WGC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted January 13, 2017
San Francisco, California
Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.
Defendant-Appellant Marcilin Benvin (Benvin) appeals from the sentence in
the judgment imposed by the district court following her post-indictment guilty
plea to one count of embezzlement and theft from an employee benefit plan in
violation of 18 U.S.C. § 664. Benvin’s sentence – 60 months in prison – was three
months above the high end of the applicable advisory guideline range and 14
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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months above the low end of the guideline range sentence recommended by the
plea agreement. On appeal, Benvin argues that the district court committed
significant procedural error by considering facts in the presentence investigation
report (PSR) as undisputed in spite of Benvin’s invocation of her Fifth Amendment
right to remain silent with respect to those facts, and also imposed a substantively
unreasonable sentence. Benvin additionally argues that the Government breached
the terms of the plea agreement by failing to recommend a low-end guideline
sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court did not commit significant procedural error by adopting
the PSR’s description of Benvin’s offense conduct as a factual finding and basing
its sentencing decision on that fact. A district court commits procedural error in
sentencing when, inter alia, it “choose[s] a sentence based on clearly erroneous
facts.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
However, when a defendant does not object to the factual accuracy of a PSR, “the
district court [is] entitled to treat the factual assertions therein as established.”
United States v. Hilgers, 560 F.3d 944, 948 n.4 (9th Cir. 2009) (citing Fed. R.
Crim. P. 32(i)(3)(A)). Benvin failed to make such an objection, and the district
court therefore properly considered the PSR’s description of Benvin’s offense

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conduct as established fact. Benvin’s invocation of her Fifth Amendment right to
remain silent with respect to the PSR’s description of her offense conduct does not
excuse her failure to challenge the PSR’s factual accuracy. See United States v.
Romero-Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000) (rejecting argument that
a district court’s reliance on an uncontroverted PSR constitutes an adverse
inference from a refusal to testify at sentencing in violation of the Fifth
Amendment).
2. The district court did not impose a substantively unreasonable sentence.
“The touchstone of ‘reasonableness’ is whether the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C.
§ 3553(a).” United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011)
(internal quotation marks omitted). We review the substantive reasonableness of a
sentence for abuse of discretion, and “may not reverse just because we think a
different sentence is appropriate.” Carty, 520 F.3d at 993. Consistent with
§§ 3553(a)(1) and 3553(a)(2)(A), the district court discussed extensively the
magnitude of Benvin’s fraudulent activity and the resulting losses for her investors
and concluded that the “overwhelming” factors in determining Benvin’s sentence
were “the seriousness of the crime and the need to promote respect for the law and,

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of course, to provide just punishment.” Although the district court did not
specifically address Benvin’s personal history and characteristics, “[a] district
court is not required to refer to each factor listed in § 3553(a).” United States v.
Mix, 457 F.3d 906, 912 (9th Cir. 2006). Because Benvin argued that her personal
history and characteristics weighed in favor of a low end guidelines sentence both
in her sentencing memorandum and during the sentencing hearing, we can infer
that the district court found this factor to be outweighed by the other explicitly
addressed § 3553(a) factors.
Furthermore, a district court is “not prohibited from considering the extent to
which the Guidelines d[o] not sufficiently account for the nature and circumstances
of [an] offense, including the amount of the loss, the number of victims, or the
harm to the victims, even though the Guidelines account for these factors either
implicitly or explicitly, to some extent.” United States v. Christensen, 732 F.3d
1094, 1101 (9th Cir. 2013) (emphasis omitted). Although the plea agreement’s
sentencing guideline stipulation may have accounted for the full extent of Benvin’s
offense conduct, the district court did not engage in impermissible double counting
in concluding that the “magnitude” of Benvin’s conduct and her victims’ losses
nevertheless supported the imposition of an upwards variance.

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3. The Government satisfied its obligation under the plea agreement to
recommend a low-end sentence. When the government agrees to recommend a
particular sentence, “[t]he bargain that the defendant agreed to [is] not a promise
by the government to recommend, but the actual fact of recommendation.” United
States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994). However, the government can
make the promised recommendation through “negative implication.” United States
v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999) (holding sufficient the statement “I
am bound under the plea agreement not to recommend more than the low end of
the sentencing range, and I will abide by that plea agreement”). Because Benvin
did not raise this issue at sentencing, we review for plain error. United States v.
Hernandez-Castro, 814 F.3d 1044, 1045–46 (9th Cir. 2016).
At sentencing, the Government twice indicated that it had agreed to
recommend a low-end sentence pursuant to the plea agreement, and made no
recommendation to the contrary. The Government therefore made the promised
recommendation by negative implication. Benvin cannot demonstrate error, much
less error that is plain or obvious.
But even assuming that the Government’s two statements were insufficient
to recommend a low-end sentence, Benvin cannot demonstrate that this error

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“affected the outcome of the district court proceedings.” Puckett v. United States,
556 U.S. 129, 135 (2009) (citation omitted). The district court explained that the
60-month statutory maximum sentence was justified by the “magnitude of the
criminality, the magnitude of the victim’s losses in this case, the magnitude of the
nature of the victims and the types of losses.” The district court did not rely on any
statements made by the Government to make this determination; rather, the district
court independently assessed the PSR, victim testimony, and victim impact letters.
In fact, the district court expressed concern that both Benvin and the Government
had “gloss[ed] over what the factual history is here” with respect to the magnitude
of Benvin’s fraudulent scheme. It is therefore unlikely that the district court would
have sentenced Benvin to a low-end guidelines sentence even if the request had
been presented by a “united front.” United States v. Quach, 302 F.3d 1096, 1101
(9th Cir. 2002).
AFFIRMED.

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