United States v. Cavon Clark

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2022
• Docket: 21-30185
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30185

Plaintiff-Appellee, D.C. Nos. 2:11-cr-00173-LRS-1 v. 2:11-cr-00173-LRS

CAVON C. CLARK, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding

Argued and Submitted August 10, 2022 Seattle, Washington

Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.

Cavon Clark pleaded guilty to one count of production of child pornography

and one count of transportation of child pornography. Following two successful

sentencing appeals, Clark’s net prison sentence was reduced from 55 years’

imprisonment to 38 years’ imprisonment. He again appeals his sentence. As none

of his claims have merit, we affirm the district court’s sentencing decision.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Clark’s net prison sentence was reduced on remand by 17 years,

representing a roughly 30 percent reduction in prison time. He nevertheless argues

that, because the district court “abruptly changed course” on remand from having

his two terms of imprisonment run concurrently to having them run consecutively,

his sentence triggers the presumption of vindictiveness and violates due process.

See, e.g., Wasman v. United States, 468 U.S. 559, 564–65 (1984). Not so. When a

defendant’s overall sentence does not increase on remand and the record

demonstrates that the district court sought to impose a balanced aggregate sentence

after accounting for the totality of the circumstances, no presumption of

vindictiveness arises even if an individual component of the defendant’s sentence

has adversely changed. United States v. Horob, 735 F.3d 866, 868–72 (9th Cir.

2013) (per curiam); United States v. Bay, 820 F.2d 1511, 1512–14 (9th Cir. 1987);

United States v. Hagler, 709 F.2d 578, 579 (9th Cir. 1983). The district court

imposed Clark’s sentence in accordance with this principle.

It is of no matter that the district court did not run Clark’s sentences

consecutively until the third sentencing hearing. District courts are authorized on

remand to reconsider a defendant’s sentencing package in its entirety, even if the

basis for remand is limited to only one aspect of the sentence. Troiano v. United

States, 918 F.3d 1082, 1087 (9th Cir. 2019); see also United States v. Handa,

122 F.3d 690, 692 (9th Cir. 1997); United States v. McClain, 133 F.3d 1191, 1193

2 (9th Cir. 1998). That discretion reflects the fact that “[n]o portion of the sentence

imposed on a defendant convicted of multiple crimes . . . can be said to be tied

inextricably to any one of the package of crimes before the judge.” Bay, 820 F.2d

at 1514. To the contrary, a sentencing court is free to select an overall punishment

that properly accounts for the totality of the circumstances and then tailor the

contours of the sentence for each individual crime to fit that overall goal. Id.; see

also U.S.S.G. § 5G1.2(d).

2. Clark argues that his sentence is substantively unreasonable, either

because his “functional co-defendant” Romano was sentenced to only 20 years’

imprisonment or because the district court “paid mere lip service” to his mitigation

evidence. Neither argument is availing.

Courts must consider, when selecting an appropriate sentence for a given

defendant, the sentences given to other defendants who have similar criminal

records and have been found guilty of similar conduct even if those defendants

were sentenced by a judge sitting in a different jurisdiction. See, e.g., United

States v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007). But district courts should

not create “unwarranted [sentencing] similarities” by approximating the sentence

of a co-defendant not “similarly situated.” Gall v. United States, 552 U.S. 38,

55–56 (2007); see also Rita v. United States, 551 U.S. 338, 349 (2007). Romano is

not similarly situated to Clark because, unlike Clark, he had no criminal history

3 and was not convicted of transportation of child pornography. The district court

thus had a reasoned basis for imposing a lengthier sentence on Clark.

Moreover, the district court expressly took account of Clark’s impairments

and troubled background when it concluded that a sentence of 38 years’

imprisonment followed by lifetime supervised relief is a sufficient but not greater

than necessary punishment under the totality of the circumstances. That sentence

was 12 years less than the Guidelines maximum sentence. Reviewing the record,

we are not left with “a definite and firm conviction” that Clark’s sentence is

substantively unreasonable. United States v. Ressam, 679 F.3d 1069, 1086–90 (9th

Cir. 2012) (en banc) (quoting United States v. Hinkson, 585 F.3d 1247, 1260 (9th

Cir. 2009) (en banc)).

3. Clark contends that the district court did not provide an adequate

explanation for its sentencing decision. This argument also fails. The district court

explained the basis for Clark’s sentence at length and directly responded to the

substantive arguments advanced by Clark’s counsel. The court’s explanation is

sufficient to permit meaningful appellate review and promote the perception of fair

sentencing. See Gall, 552 U.S. at 50; Chavez-Meza v. United States, 138 S. Ct.

1959, 1963–64 (2018).

AFFIRMED.