United States v. Eric Evans

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2019
• Docket: 19-10027
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10027

Plaintiff-Appellee, D.C. No. 3:18-cr-00308-WHO-1

v. MEMORANDUM* ERIC ARQUES EVANS,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William H. Orrick, III, District Judge, Presiding

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Eric Arques Evans appeals from the district court’s judgment and challenges

the 30-month sentence imposed following his guilty-plea conviction for being a

felon in possession of a firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1). 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). Evans contends that the district court procedurally erred by failing to explain

the sentence, including its refusal to grant a downward variance, and by relying on

a clearly erroneous belief that his prior convictions involved violent conduct.

These claims are unavailing. The district court sufficiently explained that,

notwithstanding Evans’s mitigating circumstances, a within-Guidelines sentence

was warranted in light of the offense conduct and Evans’s criminal history. See

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, the

record indicates that the district court heard and understood that none of Evans’s

previous convictions involved violence. The court’s observation that Evans’s

history “shows some violence” was supported by the record and was not clearly

erroneous. See United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).

Evans also argues that the court violated his due process rights by sentencing

him on the basis of his pending charges without finding that he committed the acts

underlying those charges. However, the district court expressly stated that it was

not the sentencing Evans on the basis of his pending charges. See United States v.

Messer, 785 F.2d 832, 834 (9th Cir. 1986) (“A defendant challenging information

used in sentencing must show such information is . . . demonstrably made the basis

for the sentence.”).

AFFIRMED.

2 19-10027