United States v. Michael Carona

546 F. App'x 724

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2013
• Docket: 13-55597
• Status: Unpublished

Opinion

MEMORANDUM **

Defendant Michael Carona appeals the district court’s denial of his motion under 28 U.S.C. § 2255. We affirm.

The district court did not clearly err in finding that Carona obstructed a criminal investigation into a form of honest services fraud that survived Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). The investigation was looking into possible bribery. Whether Carona actually committed or was convicted of bribery is immaterial. Under United States v. Arias, 253 F.3d 453 (9th Cir.2001), the cross-reference to U.S.S.G. § 2X3.1 “applies without regard to whether the underlying offense is provable.” 253 F.3d at 455. As we explained in that decision, “proof of the underlying offense is not material, because the point of the cross reference is to punish more severely (and to provide a greater disincentive for) ... obstruction of prosecutions with respect to more serious crimes.” Id. at 459. Because the district court did not clearly err in finding that bribery was one of the crimes being investigated, it was appropriate to sentence Carona accordingly.

Carona’s challenge to the substantive reasonableness of the sentence is based on the premise that the guidelines range was not correctly calculated by the district court, but we conclude that the range was not improperly determined. The sentence imposed was not substantively unreasonable.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.