United States v. Danilo Velasquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2023
• Docket: 22-10104
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10104

Plaintiff-Appellee, D.C. No. 3:08-cr-00730-WHA-33 v.

DANILO ARTURO VELASQUEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted August 14, 2023** San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and ANTOON,*** District Judge.

Danilo Arturo Velasquez appeals the district court’s judgment reimposing a

life sentence after vacatur of one of Velasquez’s four convictions on RICO-related

* 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). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. charges. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in all

respects.

1. “We review for abuse of discretion a district court’s denial of a motion to

unseal, reversing only if the denial was ‘illogical, implausible, or without support

in inferences that may be drawn from the facts in the record.’” United States v.

Perez, 962 F.3d 420, 434 (9th Cir. 2020) (footnote and citations omitted) (quoting

United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)). Here,

the district court acted well within its discretion when it denied Velasquez’s

request for “attorney’s eyes only” access to the sealed resentencing transcript of a

codefendant after weighing counsel’s asserted need for the transcript against the

reasons the transcript was sealed.1 And having conducted an in camera review of

the sealed transcript as requested by Velasquez, we find that any error in denying

access was indeed harmless.

2. “We review the substantive reasonableness of a sentence imposed by the

district court ‘under an abuse-of-discretion standard,’ ‘and will provide relief only

in rare cases.’” United States v. Wilson, 8 F.4th 970, 977 (9th Cir. 2021) (per

curiam) (citations omitted) (first quoting Gall v. United States, 552 U.S. 38, 51

(2007); and then quoting United States v. Ressam, 679 F.3d 1069, 1088 (9th Cir.

1 We would reach the same conclusion under Velasquez’s proposed “special need” standard.

2 2012) (en banc)). Velasquez argues that the reimposed life sentence is

substantively unreasonable because it resulted in an unwarranted disparity between

his sentence and those of several of his coparticipants. We find no abuse of

discretion. The district court duly considered Velasquez’s sentencing-disparity

argument and found it unpersuasive after rationally and meaningfully evaluating

the 18 U.S.C. § 3553(a) factors, including the unique characteristics of Velasquez

and his coparticipants and the nature and circumstances of their conduct. The

court did not penalize Velasquez for exercising his Fifth Amendment right to trial

and appeal rather than entering a guilty plea like some of his coparticipants.

AFFIRMED.