United States v. Elkshoulder

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 24, 2024
• Docket: 24-1741
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-1741 D.C. No. Plaintiff - Appellee, 1:23-cr-00035-SPW-1 v. MEMORANDUM* MARK STEVEN ELKSHOULDER,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted December 17, 2024**

Before: WALLACE, GRABER, and BUMATAY, Circuit Judges.

Mark Steven Elkshoulder appeals from the district court’s judgment and

challenges the 33-month sentence imposed following his guilty-plea conviction for

failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). We have

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

* 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). Elkshoulder contends that his sentence, which is at the bottom of the

Guidelines range, is substantively unreasonable. He argues that the district court

should have granted a “moderate downward variance” to reflect his mitigating

circumstances, including the results of a recent psychosexual evaluation and the

fact that he had already served a revocation sentence for related conduct. The

district court considered these factors, however, and did not abuse its discretion in

denying Elkshoulder’s request for a variance. See Gall v. United States, 552 U.S.

38, 51 (2007). The within-Guidelines sentence is substantively reasonable in light

of the 18 U.S.C. § 3553(a) factors and the totality of the circumstances, including

Elkshoulder’s extensive criminal history, which included three prior convictions

for failure to register. See Gall, 552 U.S. at 51; United States v. Gutierrez-

Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the various

factors in a particular case is for the discretion of the district court.”).

AFFIRMED.

2 24-1741