Opinion
Argued and Submitted, Pasadena, California November 18, 2011
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the Central District of California. D.C. No. 2:08-cr-00228-ODW-1. Otis D. Wright, District Judge, Presiding.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jill Therese Feeney, Esquire, Assistant U.S. Attorney, Brian Klein, Esquire, Assistant U.S. Attorney, Michael J. Raphael, Esquire, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY, Los Angeles, CA.
For ANTHONY PENDLETON, Defendant - Appellant: James H. Locklin, Esquire, Assistant Federal Public Defender, FPDCA - FEDERAL PUBLIC DEFENDER'S OFFICE (LOS ANGELES), Los Angeles, CA.
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior District Judge.
The Honorable Richard Mills, Senior District Judge for the U.S. District Court for the Central District of Illinois, sitting by designation.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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 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).
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.