United States v. Christopher Cain

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2020
• Docket: 19-30047
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30047

Plaintiff-Appellee, D.C. No. 2:16-cr-00176-RMP-1 v.

CHRISTOPHER ALLEN CAIN, AKA MEMORANDUM* Christopher Cain Bey,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 19-30048

Plaintiff-Appellee, D.C. No. 2:16-cr-00069-RMP-1 v.

CHRISTOPHER ALLEN CAIN, AKA Christopher Cain Bey,

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted April 1, 2020** Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

Defendant Christopher Allen Cain was tried and convicted on one count

each of: (1) felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2), and (2) possession with intent to distribute five grams (or more) of

methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). At his

March 2019 resentencing,1 the district court sentenced Cain to a total sentence of

270 months—150 months for the drug offense to run consecutively to 120 months

for the firearms charge. Cain timely appealed this sentence. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. Cain argues that the district court’s resentencing was not procedurally sound.

It is “procedural error for a district court to . . . fail adequately to explain the

sentence selected, including any deviation from the Guidelines range.” United

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 In a previous appeal, this court vacated and remanded Cain’s initial sentence, but denied “Cain[’s] challenges [to] the district court’s denial of several pre-trial and trial motions: a motion to dismiss his indictment on speedy trial grounds; a motion to prevent the admission of drug evidence in his firearm case, and firearm evidence in his drug case; and a request for a specific jury instruction on impeachment.” United States v. Cain, 754 F. App’x 538, 539 (9th Cir. 2018) (unpublished). We do not address Cain’s restatement of these same arguments, as he acknowledges they are raised solely to preserve the arguments on appeal. 2 States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). “We review de novo

whether the district court provided an adequate statement of reasons for the

sentence it imposed.”2 United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.

2009).

Cain first argues that the district court committed procedural error by failing

to address his argument that a mid-range sentence was appropriate in this case

because a mid-range sentence had been entered at the initial sentencing. But the

district court directly addressed this argument:

I certainly, in the first sentencing hearing, was not looking to say that Mr. Cain’s case was somehow in the midrange of cases. I think, actually, Mr. Cain’s situation is quite extraordinary due to the extended criminal history, which I think seriously—the 13 points seriously underrepresents his actual criminal history. I chose a sentence then that I thought was sufficient but no greater than necessary. That was 300 months.

That Cain was not satisfied with this explanation does not mean that it was legally

erroneous. See United States v. Trujillo, 713 F.3d 1003, 1011 (9th Cir. 2013)

2 A district court judge “has the legal authority to impose a sentence outside the [Guidelines] range.” Chavez-Meza v. United States, 138 S. Ct. 1959, 1963 (2018). However, in doing so, the judge must: (1) “always take account of certain statutory factors” laid out in 18 U.S.C. § 3553(a), id.; (2) explain the selected sentence “sufficiently to permit meaningful appellate review,” Carty, 520 F.3d at 992; and (3) state “the specific reason for the imposition of a sentence different from that described,” 18 U.S.C. § 3553(c)(2). 3 (finding that a district court commits “legal error” in “not at all explain[ing] the

reasons for rejecting” a defendant’s arguments in support of a lower sentence).

Cain’s second procedural argument is that the district court failed to

sufficiently explain the reasons for the sentence it imposed. However, in

determining the appropriate sentence, the court adequately weighed the § 3553(a)

factors. The district court first weighed the nature and circumstances of the offense

and found that drug distribution “is a crime against society” and that Cain’s

possession of a firearm “is inherently dangerous.” The court next looked to the

history and characteristics of the defendant, listing the many dangerous crimes

Cain had committed in his past—including crimes that were not accounted for in

his criminal history categorization. With respect to the need for this specific

sentence, the court found that the sentence was needed considering: (1) “there has

been no deterrence to criminal conduct that I can see through Mr. Cain’s life,” and

(2) the need to protect the public from Cain. The court ultimately justified the

overall sentence length by pointing to Cain’s underrepresented criminal history:

“[Cain]’s criminal history, including assaults and other physical injury to

individuals, compels the [c]ourt to find that consecutive sentences totaling 270

4 months of imprisonment is sufficient, but no greater than necessary, considering

the [§] 3553(a) factors and the sentencing guidelines.”3

Cain also argues that the district court “failed to give any weight” to the

Guidelines, instead using the applicable range as a tool to reach the sentence it

wanted. However, as we have explained, the Sentencing Guidelines are but the

“starting point and the initial benchmark” for a district court judge assessing the

appropriate sentence. Carty, 520 F.3d at 991 (quoting Kimbrough v. United States,

552 U.S. 85, 108 (2007)). And though the district court rejected the mid-range

sentence proposed by Cain, it (as discussed above) had good reason for doing so

and its decision properly took into account the § 3553(a) factors.

Cain finally argues that the district court procedurally erred in applying the

sentences consecutively rather than concurrently. But the Guidelines do not

require concurrent sentencing and it is squarely within the discretion of the district

court to determine whether to impose concurrent or consecutive sentences, see 18

3 Cain also seems to assert that the district court gave too much weight to a single § 3553(a) factor, while failing to sufficiently consider the other factors—an error that could merit reversal. See United States v. Paul, 561 F.3d 970, 975 (9th Cir. 2009) (per curiam). However, because Cain has failed to properly develop this argument in his briefing, this argument is waived. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929–30 (9th Cir. 2003); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.”). 5 U.S.C. § 3584(a) (“If multiple terms of imprisonment are imposed on a defendant

at the same time . . . the terms may run concurrently or consecutively . . . .”). And,

“in determining whether the terms imposed are to be ordered to run concurrently or

consecutively,” the court “shall consider, as to each offense for which a term of

imprisonment is being imposed, the factors set forth in [§] 3553(a).” Id. § 3584(b).

Because Cain points to no specific factors the district court failed to consider in

making its determination, his argument that the court committed procedural error

in applying these sentences consecutively fails.

2. Cain next argues that the sentence imposed was substantively unreasonable.

Our review of sentencing decisions is “limited to determining whether they are

‘reasonable,’” and the applicable standard of review is abuse of discretion. Gall v.

United States, 552 U.S. 38, 46 (2007).

Cain first argues that his sentence is substantively unreasonable because

there was a lack of aggravation regarding the drug offense. But this argument

contradicts record evidence. Indeed, the government has shown that: (1) the

officers searching the vehicle found a bag containing methamphetamine, two

scales of the type used for weighing controlled substances, several small Ziploc

bags the officers suspected were used for distribution, and one bag containing a

large methamphetamine crystal; and (2) Cain was caught attempting to sell cocaine

6 to undercover police on a number of occasions. Though it is true that Cain may

not have been the lynchpin of a large drug-distribution operation, the district court

did not make its sentencing determination on this basis.

Cain next argues that, “[i]n regard to the firearm, once again the evidence is

not particularly aggravated.” But, again, the record contradicts this assertion.

Indeed, the evidence indicates that: (1) the gun was located less than a foot away

from the drugs, was fully loaded, and had a bullet in the chamber; (2) the officers

found more than 20 additional rounds of ammunition and a speed loader located in

the car; and (3) just weeks after his arrest for the actions charged in this case, Cain

discharged a gun outside a mini mart in the direction of a vehicle and an individual.

Based on the record as a whole, there is no indication that the district court abused

its discretion in determining that the 270-month sentence imposed was reasonable.

See United States v. Ressam, 679 F.3d 1069, 1087 (9th Cir. 2012) (en banc).

AFFIRMED.