United States v. Shawn Best, Sr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2023
• Docket: 22-30199
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30199

Plaintiff-Appellee, D.C. No. 2:22-cr-00001-RMP-1

v. MEMORANDUM* SHAWN VINCENT BEST, Sr.,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted September 12, 2023**

Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.

Shawn Vincent Best, Sr., appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

assault resulting in substantial bodily injury to a domestic partner in Indian

country, in violation of 18 U.S.C. §§ 113(a)(7), 1153(a). We have jurisdiction

* 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). under 28 U.S.C. § 1291, and we affirm.

Best contends that the district court failed to explain adequately its decision

to impose an above-Guidelines sentence. He further argues that the court

improperly relied on facts he did not admit and the government did not prove,

resulting in a substantively unreasonable sentence. In Best’s view, the uncontested

facts and the 18 U.S.C. § 3553(a) factors supported a time-served sentence. We

review Best’s unpreserved procedural claims for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and his claim that the

sentence is substantively unreasonable for an abuse of discretion, see Gall v.

United States, 552 U.S. 38, 51 (2007).

The district court did not procedurally err, nor did it abuse its discretion in

imposing the above-Guidelines sentence. The court provided a thorough

explanation for its sentencing decision, explaining that upward departures were

warranted for: (1) Best’s uncounted tribal convictions for conduct similar to the

offense conduct, see U.S.S.G. § 4A1.3, and (2) the extreme psychological injury

Best caused his victim, see U.S.S.G. § 5K2.3. The court further explained that the

§ 3553(a) factors independently supported the upward variance given the harm

Best caused to the victim, his criminal history, his lack of remorse at sentencing,

and the need to protect the public. This explanation was more than sufficient. See

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, the

2 22-30199 court permissibly relied on the presentence report and the victim’s sentencing

statement. See United States v. Christensen, 732 F.3d 1094, 1102, 1104-05 (9th

Cir. 2013). Finally, the 46-month sentence is substantively reasonable in light of

the totality of the circumstances. See Gall, 552 U.S. at 51.

AFFIRMED.

3 22-30199