United States v. Felkins

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2024
• Docket: 23-1772
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1772

Plaintiff-Appellee, D.C. No. 2:20-CR-175-TLN v.

KRISTY LYNN FELKINS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted August 23, 2024** San Francisco, California

Before: BERZON, BRESS, and VANDYKE, Circuit Judges.

After soliciting a hitman from a scam website called “Besa Mafia” and

transferring the operators of that site about $5,000 as payment to kill her ex-husband,

Kristy Felkins pleaded guilty without a plea agreement to one count of solicitation

of murder-for-hire under 18 U.S.C. § 1958. Pursuant to U.S.S.G. §§ 2E1.4 and

* 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). 2A1.5, the presentence report initially calculated her guideline sentencing range at

151 to 188 months, which was lowered to match the statutory maximum of 120

months. See 18 U.S.C. § 1958(a). Both the probation officer and the government

recommended a below-guidelines sentence of 87 months. Felkins lodged several

objections to the guidelines range, including that the court should disregard it on

policy grounds, and requested a sentence of five years’ supervised release with no

imprisonment. The district court sentenced her to 60 months’ imprisonment.

Felkins appealed, arguing the district court erred procedurally by failing to

(1) acknowledge its discretion to downwardly vary on policy grounds and

(2) explain why it rejected her arguments. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

“A district court may vary from the Guidelines if it disagrees with them on

policy grounds and the Sentencing Commission fails to exercise its characteristic

institutional role in their development.” United States v. Kabir, 51 F.4th 820, 828

(9th Cir. 2022) (quoting United States v. Carper, 659 F.3d 923, 925 (9th Cir. 2011)).

But such variances are discretionary, not mandatory, and “[a]ll that is required of a

district court faced with policy arguments is an indication that it understood its

authority to vary from the Guidelines on these grounds ….” Id. “[R]eversal is not

justified where the court reviews and listens to the defendant’s arguments, states that

it has reviewed the criteria set forth in § 3553(a), and then imposes a sentence,

2 explaining both the sentence and the justification for the decision.” United States v.

Rangel, 697 F.3d 795, 806 (9th Cir. 2012).

The district court here clearly satisfied these requirements during the

sentencing hearing. It reviewed Felkins’s policy arguments, briefly summarized

them to ensure it understood them correctly, and confirmed with defense counsel

that its characterization was correct. The court then stated it would consider the

policy arguments during sentencing. It noted both the advisory nature of the

guidelines and its obligation under § 3553(a) “to determine a sentence sufficient but

not greater than necessary.” Finally, the court rejected Felkins’s request for a non-

custodial sentence because in its view, “this [wa]s a case that d[id] call for some

imprisonment.” But it nevertheless granted a significant downward variance from

the guidelines range and from the 87 months recommended by the probation officer

and the government, and the court explained its reasons for doing so.

Felkins’s contrary arguments do not show error. Her first argument—that the

district court failed to appreciate its discretion to vary downward—is undercut by

(1) the court’s agreement with the government that it should consider the objections

“as a request for a variance under 18 U.S.C. [§] 3553(a),” (2) its indication that it

“w[ould] consider those arguments during the sentencing,” and (3) its eventual

decision to grant a very significant downward variance, one considerably greater

than that recommended by the government and the probation officer. These facts

3 provide sufficient “indication that [the district court] understood its authority to vary

from the Guidelines.” Kabir, 51 F.4th at 828.

Felkins responds that the court “treated the Guidelines as mandatory” by

“mak[ing] clear it was rejecting Ms. Felkins’[s] legal objection under United States

v. Temkin, 797 F.3d 682 (9th Cir. 2015).” But that argument conflates Felkins’s

predicate objection to the presentence report’s calculation of the guideline range,

which she has not preserved in this appeal, with her subsequent policy-based

argument for a variance, which is at issue here.

Temkin concerned only the former issue—the proper method of calculating

the guideline range pursuant to U.S.S.G. § 2E1.4 and § 2A1.5—and concluded that

a “district court commit[s] procedural error by failing to apply the cross-referencing

provision in U.S.S.G. § 2E1.4(a)(2).” Id. at 695. Consistent with that view of

Temkin, the district court “agree[d] … that the PSR properly calculated the

defendant’s base offense level” because “a defendant being sentenced for a [§] 1958

conviction should have an offense level set by [U.S.S.G. §] 2A1.5.” It is thus

sufficiently clear that the district court invoked Temkin to reject only Felkins’s

argument that the presentence report improperly calculated the guideline range, not

her policy arguments for deviating from that range.

Felkins’s second argument—that the district court failed to adequately explain

its reasons for rejecting her policy arguments—rests on a faulty premise. The record

4 does not support the conclusion that the district court did, in fact, reject her claim.

Instead, the district court granted a significant downward variance after indicating

that it would take Felkins’s policy arguments under advisement during sentencing.

Thus, while Felkins is correct that a district court’s discretion to reject a defendant’s

policy argument “does not mean that” it “is free to ignore it,” United States v.

Henderson, 649 F.3d 955, 964 (9th Cir. 2011), there is no indication here that the

district court ignored her argument.

To survive appellate review, sentencing courts are not required to

mechanically list every factor that influences their sentencing decision and describe

in detail the exact manner in which such factors affect the sentence. As we have

made clear, “[t]he district court need not tick off each of the § 3553(a) factors to

show that it has considered them.” United States v. Carty, 520 F.3d 984, 992 (9th

Cir. 2008) (en banc). Instead, the court “need only ‘set forth enough to satisfy the

appellate court that the district court considered the parties’ arguments and had a

reasoned basis for exercising its own legal decisionmaking authority.’” United

States v. Laurienti, 731 F.3d 967, 975 (9th Cir. 2013) (quoting United States v.

Apodaca, 641 F.3d 1077, 1081 (9th Cir. 2011)) (cleaned up). For the reasons

explained above, the district court did so here.

AFFIRMED.