United States v. Jonny Shineflew

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 2022
• Docket: 21-30173
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30173

Plaintiff-Appellee, D.C. Nos. 2:19-cr-00215-TOR-2 v. 2:19-cr-00215-TOR

JONNY SHINEFLEW, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Submitted June 7, 2022** Seattle, Washington

Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.

Jonny Shineflew challenges his 70-month sentence imposed after his guilty-

plea conviction for conspiring to commit bank fraud, in violation of 18 U.S.C.

* 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). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. §§ 1349, 1344; committing mail theft, in violation of 18 U.S.C. § 1708; and

committing aggravated identify theft, in violation of 18 U.S.C. § 1028A. We have

jurisdiction under 28 U.S.C. § 1291. For the following reasons, we affirm the

judgment of the district court.

Shineflew first contends that the government breached the Plea Agreement

by advocating for the inclusion in Shineflew’s Presentence Report of a three-level

manager/supervisor role enhancement based on United States Sentencing

Guidelines § 3B.1.1(b). We review de novo whether that advocacy violated the

terms of the Plea Agreement. United States v. Schuman, 127 F.3d 815, 817

(9th Cir. 1997) (per curiam).

Because Section 7(d) of the Plea Agreement gave both parties the freedom

to support or oppose any Guidelines calculation that was outside of those expressly

set forth in the Agreement, and because the Agreement did not expressly restrict

either party from arguing for other appropriate adjustments, the government did

not violate the Agreement when it sought the role enhancement. See United States

v. Ellis, 641 F.3d 411, 417 (9th Cir. 2011) (holding that the government breaches a

plea agreement if it attempts “to influence the district court to impose a harsher

sentence than one to which the government agreed in the plea agreement to

recommend” (internal quotation marks omitted) (quoting United States v. Allen,

434 F.3d 1166, 1175 (9th Cir. 2006))).

2 The Plea Agreement also included an integration clause, whereby both

parties acknowledged that “this document constitute[d] the entire Plea Agreement

between the United States and Defendant, and no other promises, agreements, or

conditions exist between the United States and Defendant.” In the face of a fully

integrated plea agreement, we cannot consider the prior negotiations or oral

agreements that Shineflew now attempts to introduce. See United States v. Floyd,

1 F.3d 867, 870 (9th Cir. 1993) (treating a plea agreement as fully integrated where

the agreement contained an integration clause).

Shineflew next argues that the district court erred in actually applying the

three-level role enhancement. We review the court’s application of the role

enhancement under the abuse-of-discretion standard. United States v. Harris, 999

F.3d 1233, 1235 (9th Cir. 2021). The record supports the inference that Shineflew

orchestrated key components of the bank-fraud conspiracy by directing his

codefendants to act, thereby exercising control over at least some of those who

were participating in the scheme. See United States v. Riley, 335 F.3d 919, 929

(9th Cir. 2003); see also United States v. Camper, 66 F.3d 229, 232 (9th Cir.

1995). Shineflew directed at least one codefendant to negotiate fraudulent checks

at Home Depot, Walmart, and Lowe’s. To effectuate this criminal activity, he

created a false identification for the codefendant and then drove the codefendant to

the Home Depot. Shineflew also created a false identification for at least one other

3 codefendant to further assist in the cashing or negotiating of fraudulent checks.

And he directed that codefendant to open a Numerica Credit Union account under

a false name. The record supports the inference that Shineflew orchestrated and

incentivized these acts by storing scheme-related equipment in his residence,

sharing the ill-gotten cash, and paying in advance to open an account. Based on

these facts, the district court did not abuse its discretion when it applied the role

enhancement.

Shineflew responds by relying on Harris to argue that he was, at most, only

facilitating his codefendants’ participation in the conspiracy, as opposed to

managing or directing them. See 999 F.3d at 1236. In Harris, this court held that

participating in making “lists of deviant sexual acts and partners” was “at most

analogous to making a suggestion” or “facilitation,” which was “not enough for

application of the enhancement.” Id. But the facts of Harris are not comparable to

those presented in the case before us because, unlike the defendant in Harris, the

degree of control that Shineflew exercised over other codefendants exceeded mere

suggestion or facilitation.

AFFIRMED.