United States v. Golshan

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2025
• Docket: 23-4030
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-4030 D.C. No. Plaintiff - Appellee, 2:23-cr-00085-ODW-1 v. MEMORANDUM*

AMIR HOSSEIN GOLSHAN,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Argued and Submitted February 4, 2025 Pasadena, California

Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.

Defendant-Appellant Amir Golshan (“Golshan”) pleaded guilty to

defrauding victims through various online scams and unauthorized intrusions into

their digital accounts, causing over $1 million in losses. Less than two weeks

before sentencing, Golshan moved for a continuance so that his retained

psychologist could more fully prepare an expert report. The district court denied

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the motion and sentenced Golshan to 96 months imprisonment, an upward

departure from the Sentencing Guidelines range of 51 to 63 months. Golshan

timely appealed, arguing that denial of the requested continuance violated his due

process rights, that the district court committed procedural errors at sentencing, and

that his sentence is substantively unreasonable. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. “There are no mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process. The answer must be found in

the circumstances present in every case, particularly in the reasons presented to the

trial judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589

(1964). To determine whether denial of a continuance violates due process, we

consider (1) the appellant’s diligence in preparing their defense; (2) the likelihood

that the need for a continuance would have been met had the continuance been

granted; (3) the inconvenience imposed on the court and the opposing party by the

continuance; and (4) the extent of harm suffered by the appellant as a result of the

denial. United States v. Flynt, 756 F.2d 1352, 1358–59 (9th Cir. 1985). To

“obtain a reversal, appellant must show at a minimum that he has suffered

prejudice as a result of the denial of his request.” Id. at 1359.

Golshan has not established prejudice. His expert submitted a mitigation

report that the district court fully considered before imposing the sentence. Cf. id.

2 23-4030 at 1361–62 (finding prejudice where the defendant was “deprive[d]” of “the only

testimony potentially effective to his defense” (citation omitted)). Golshan argues

that his expert was only able to prepare a “first draft” and thus did not have an

“adequate opportunity” to expand on the connection between Golshan’s lifetime of

being bullied and his crimes. But the report discussed Golshan’s past

“mistreatment by others” and connected such mistreatment to his criminal activity.

Moreover, there is no indication what additional information the second draft

would contain.

2. Golshan argues the district court committed various procedural errors

in sentencing. We review for abuse of discretion, United States v. Carty, 520 F.3d

984, 988 (9th Cir. 2008), and find none.

First, Golshan faults the district court for considering his sexual extortion of

his victims because he was not charged for this conduct. But a district court is free

to consider “uncharged” conduct when imposing a sentence. See United States v.

May, 706 F.3d 1209, 1213 (9th Cir. 2013).

Second, Golshan argues that the district court erred by failing to view his

mental health evidence as mitigating. There is no requirement that district courts

do so, however. See U.S.S.G. § 5H1.3 (“Mental and emotional conditions may be

relevant in determining whether a departure is warranted[.]” (emphasis added)).

Further, the district court did consider this evidence, noting his expert’s diagnosis

3 23-4030 of various mental health disorders and that he experienced bullying throughout his

childhood.

Third, Golshan argues that the district court erred when relying on the

probation officer’s sentencing recommendation because the probation officer did

not have a chance to review Golshan’s expert’s report and provided an “unfair

characterization” of Golshan’s pretrial release violations. But the district court

acknowledged that the probation officer had not reviewed the expert report, and

was otherwise within its discretion to consider Golshan’s pretrial release violations

as part of his “history and characteristics,” suggesting a lack of “respect for the

law.” 18 U.S.C. § 3553(a)(1)–(2).

3. Finally, considering the “totality of the circumstances” of Golshan’s

conduct and pretrial release violations, United States v. Ringgold, 571 F.3d 948,

950 (9th Cir. 2009), Golshan’s sentence is not substantively unreasonable.

AFFIRMED.

4 23-4030