United States v. Hansack

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2024
• Docket: 23-1359
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1359 D.C. No. Plaintiff - Appellee, 2:23-cr-00021-SVW-1 v. MEMORANDUM* ANDREW ZEPEDA HANSACK,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted December 4, 2024** Pasadena, California

Before: OWENS, LEE, and KOH, Circuit Judges.

Andrew Zepeda Hansack appeals from the seventy-two-month sentence

imposed following his guilty plea to two counts of aiding and assisting in the

preparation of a false tax return in violation of 26 U.S.C. § 7206(2). Hansack

* 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). argues that his sentence was both procedurally and substantively unreasonable. As

the parties are familiar with the facts, we do not recount them here. We affirm.

1. We review Hansack’s procedural-error claims for plain error because he

did not raise them before the district court. See United States v. Christensen, 732

F.3d 1094, 1101 (9th Cir. 2013). “To secure reversal under the plain error

standard, [the defendant] must show that: (1) there was error; (2) the error was

plain; and (3) the error affected [the defendant’s] substantial rights.” Id. If those

three conditions are met, we have discretion to reverse if the error “seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(citation omitted). Hansack fails to show that the district court committed plain

error.

Hansack argues that the district court failed to comply with Federal Rule of

Criminal Procedure 32(i)(3)(B), which generally requires that “for any disputed

portion of the presentence report or other controverted matter,” a sentencing court

“must . . . rule on the dispute[.]” Hansack argues that the district court failed to

rule on his contention that criminal history category II overstated his criminal

history. While Hansack urged the district court to adopt the presentence report’s

(“PSR”) U.S. Sentencing Guidelines calculations, which included a criminal

history category II, he also contended that category II overstated his criminal

history.

2 23-1359 Although the district court did not specifically discuss Hansack’s contention

regarding his criminal history category, the court complied with Rule 32 because,

by adopting the PSR’s Guidelines calculations, it overruled Hansack’s contention.

See United States v. Riley, 335 F.3d 919, 931 (9th Cir. 2003) (holding that, even

though the district court did not “specifically address” the defendant’s objection to

the “criminal history calculation,” the court’s “later adopt[ion] [of] the

recommendations and findings of fact of the PSR” was “sufficient to satisfy Rule

32”).

Hansack also argues that the sentencing transcript fails to demonstrate

whether the district court read his sentencing position or the other sentencing

documents. But, there is no indication that the court did not read the sentencing

documents, and Hansack cites no authority that the court must explicitly state that

it read the sentencing documents.

In addition, Hansack argues that the district court failed to consider all of the

18 U.S.C. § 3553(a) factors and adequately explain its sentence choice. The

district court “need not tick off each of the § 3553(a) factors to show that it has

considered them,” and “[w]hat constitutes a sufficient explanation” will depend

upon the circumstances of the particular case. United States v. Carty, 520 F.3d

984, 992 (9th Cir. 2008) (en banc).

3 23-1359 While the district court did not explicitly mention Hansack’s mitigating

arguments, the court noted that it had “consider[ed] the sentencing factors under

section 3553(a)” including Hansack’s “background” and “the nature and the

circumstances of the offense.” Moreover, the court adequately explained its

reasons to permit meaningful appellate review. The court explained that Hansack

deserved an above-Guidelines sentence because (1) it was “one of the most

serious” tax preparation fraud crimes that the judge had encountered in his “many

years on the bench”; and (2) there was a need to deter future tax preparation fraud

by Hansack and others.

2. Finally, Hansack argues that his above-Guidelines sentence was

substantively unreasonable. “[T]he substantive reasonableness of a sentence—

whether objected to or not at sentencing—is reviewed for abuse of discretion.”

United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). “[O]ur review of the

substantive reasonableness of a sentence is deferential and will provide relief only

in rare cases.” United States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en

banc). “In determining substantive reasonableness, we are to consider the totality

of the circumstances, including the degree of variance for a sentence imposed

outside the Guidelines range.” Id. at 1089 (quoting Carty, 520 F.3d at 993).

Overall, the district court acted within its discretion in sentencing Hansack

to seventy-two months’ imprisonment, above the Guidelines range, given the

4 23-1359 seriousness of Hansack’s tax preparation fraud, particularly the egregiousness of

him continuing to engage in tax preparation fraud while on pre-sentencing release.

AFFIRMED.

5 23-1359