NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10159
Plaintiff-Appellee, D.C. No. 2:11-cr-00234-TLN-1 v.
STEVEN ZINNEL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding
Submitted June 17, 2021** San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges. Partial Dissent by Judge BRESS
Steven Zinnel was convicted of concealment of property in anticipation of
bankruptcy, 18 U.S.C. § 152(7); concealment of property in bankruptcy proceedings,
18 U.S.C. § 152(1); money laundering, 18 U.S.C. § 1956(a)(1)(B)(i); monetary
* 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). transactions in criminally-derived property, 18 U.S.C. § 1957; and money laundering
conspiracy, 18 U.S.C. § 1956(h). In this appeal, Zinnel only challenges his sentence
and term of supervised release. Zinnel argues that the district court procedurally
erred in imposing his sentence, that his term of imprisonment for 152 months is
substantively unreasonable, that several standard and special conditions of
supervised release require remand, and that his case should be reassigned due to the
district court’s bias. We have jurisdiction under 28 U.S.C. § 1291, and we review
for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc).
1. With the exception of the imposition of standard condition 8, discussed
infra, the district court did not procedurally err in sentencing Zinnel. The district
court adequately addressed Zinnel’s argument that his sentence should only be 36
months based on the sentences of 42 unrelated bankruptcy-fraud defendants. As the
district court noted, differences among sentences of unrelated defendants is not
evidence of unwarranted disparity. United States v. Treadwell, 593 F.3d 990, 1011–
12 (9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d
1095 (9th Cir. 2020). Furthermore, the district court sufficiently explained the
factors that went into its sentence, such as the severity and length of Zinnel’s fraud,
how it ensnared family and friends, and the amount of the loss involved. The district
court also adequately explained its imposition of a three-year term of supervised
2 release, noting that the term would help Zinnel reintegrate into the community. The
district court accordingly “set forth enough to satisfy the appellate court that [it]
considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own
legal decisionmaking authority.” United States v. Laurienti, 731 F.3d 967, 975 (9th
Cir. 2013) (quoting United States v. Apodaca, 641 F.3d 1077, 1081 (9th Cir. 2011)).
2. Zinnel’s argument that his sentence is substantively unreasonable is
without merit. Zinnel does not contest that the district court accurately calculated
his Guidelines range to be 188 to 235 months. The district court then sentenced
Zinnel to 152 months—three years below the low end of the Guidelines range.
Zinnel fails to demonstrate how the court’s downward variance of three years was
so insufficient as to constitute an abuse of discretion or make his sentence
substantively unreasonable. See United States v. Bendtzen, 542 F.3d 722, 729 (9th
Cir. 2008) (“Because ‘a Guidelines sentence will usually be reasonable,’ . . . [the
defendant’s] below-Guidelines sentence, supported by the district court’s specific
reasoning, is reasonable.” (quoting Carty, 520 F.3d at 994)).1
3. As the government concedes, Zinnel’s supervised release standard
conditions 4 and 12 (regarding “regular work” and “risk-notification”) are
1 Zinnel also argued that the district court violated his Sixth Amendment rights by using facts not found by the jury to significantly increase his sentence within the statutory maximum. He concedes, however, that we are bound by precedent to reject the argument. See, e.g., United States v. Barragan, 871 F.3d 689, 716 (9th Cir. 2017); Treadwell, 593 F.3d at 1017.
3 unconstitutionally vague, following this court’s decision in United States v. Evans,
883 F.3d 1154, 1163–64 (9th Cir. 2018). These conditions are vacated and
remanded for the district court to modify the conditions in line with our post-Evans
holdings. See United States v. Gibson, No. 20-10074, 2021 WL 2008217, at *6 (9th
Cir. May 20, 2021); United States v. Ped, 943 F.3d 427, 433–34 (9th Cir. 2019).
4. It was not an abuse of discretion for the district court to impose the “no
alcohol” special condition of supervised release. This court will uphold the
condition when “there was some evidence of prior alcohol, drug, or prescription
medicine abuse.” United States v. Betts, 511 F.3d 872, 879 (9th Cir. 2007) (emphasis
added). In imposing the condition, the district court relied on evidence in the
presentence report that Zinnel struggled with excessive alcohol consumption
following his indictment in this case. The district court also noted that Zinnel
admitted to struggling with alcohol addiction previously in his life. This was a
sufficient basis to impose the condition.
5. Zinnel contends that the district court procedurally erred in imposing
supervised release standard condition 8, which would prevent Zinnel from
contacting his life partner of over 19 years during his three-year term of supervised
release. We agree. Such a ban on associating with a “life partner” implicates a
particularly significant liberty interest, and triggers “enhanced procedural
requirement[s].” United States v. Wolf Child, 699 F.3d 1082, 1091 (9th Cir. 2012);
4 United States v. Napulou, 593 F.3d 1041
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10159
Plaintiff-Appellee, D.C. No. 2:11-cr-00234-TLN-1 v.
STEVEN ZINNEL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding
Submitted June 17, 2021** San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges. Partial Dissent by Judge BRESS
Steven Zinnel was convicted of concealment of property in anticipation of
bankruptcy, 18 U.S.C. § 152(7); concealment of property in bankruptcy proceedings,
18 U.S.C. § 152(1); money laundering, 18 U.S.C. § 1956(a)(1)(B)(i); monetary
* 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). transactions in criminally-derived property, 18 U.S.C. § 1957; and money laundering
conspiracy, 18 U.S.C. § 1956(h). In this appeal, Zinnel only challenges his sentence
and term of supervised release. Zinnel argues that the district court procedurally
erred in imposing his sentence, that his term of imprisonment for 152 months is
substantively unreasonable, that several standard and special conditions of
supervised release require remand, and that his case should be reassigned due to the
district court’s bias. We have jurisdiction under 28 U.S.C. § 1291, and we review
for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc).
1. With the exception of the imposition of standard condition 8, discussed
infra, the district court did not procedurally err in sentencing Zinnel. The district
court adequately addressed Zinnel’s argument that his sentence should only be 36
months based on the sentences of 42 unrelated bankruptcy-fraud defendants. As the
district court noted, differences among sentences of unrelated defendants is not
evidence of unwarranted disparity. United States v. Treadwell, 593 F.3d 990, 1011–
12 (9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d
1095 (9th Cir. 2020). Furthermore, the district court sufficiently explained the
factors that went into its sentence, such as the severity and length of Zinnel’s fraud,
how it ensnared family and friends, and the amount of the loss involved. The district
court also adequately explained its imposition of a three-year term of supervised
2 release, noting that the term would help Zinnel reintegrate into the community. The
district court accordingly “set forth enough to satisfy the appellate court that [it]
considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own
legal decisionmaking authority.” United States v. Laurienti, 731 F.3d 967, 975 (9th
Cir. 2013) (quoting United States v. Apodaca, 641 F.3d 1077, 1081 (9th Cir. 2011)).
2. Zinnel’s argument that his sentence is substantively unreasonable is
without merit. Zinnel does not contest that the district court accurately calculated
his Guidelines range to be 188 to 235 months. The district court then sentenced
Zinnel to 152 months—three years below the low end of the Guidelines range.
Zinnel fails to demonstrate how the court’s downward variance of three years was
so insufficient as to constitute an abuse of discretion or make his sentence
substantively unreasonable. See United States v. Bendtzen, 542 F.3d 722, 729 (9th
Cir. 2008) (“Because ‘a Guidelines sentence will usually be reasonable,’ . . . [the
defendant’s] below-Guidelines sentence, supported by the district court’s specific
reasoning, is reasonable.” (quoting Carty, 520 F.3d at 994)).1
3. As the government concedes, Zinnel’s supervised release standard
conditions 4 and 12 (regarding “regular work” and “risk-notification”) are
1 Zinnel also argued that the district court violated his Sixth Amendment rights by using facts not found by the jury to significantly increase his sentence within the statutory maximum. He concedes, however, that we are bound by precedent to reject the argument. See, e.g., United States v. Barragan, 871 F.3d 689, 716 (9th Cir. 2017); Treadwell, 593 F.3d at 1017.
3 unconstitutionally vague, following this court’s decision in United States v. Evans,
883 F.3d 1154, 1163–64 (9th Cir. 2018). These conditions are vacated and
remanded for the district court to modify the conditions in line with our post-Evans
holdings. See United States v. Gibson, No. 20-10074, 2021 WL 2008217, at *6 (9th
Cir. May 20, 2021); United States v. Ped, 943 F.3d 427, 433–34 (9th Cir. 2019).
4. It was not an abuse of discretion for the district court to impose the “no
alcohol” special condition of supervised release. This court will uphold the
condition when “there was some evidence of prior alcohol, drug, or prescription
medicine abuse.” United States v. Betts, 511 F.3d 872, 879 (9th Cir. 2007) (emphasis
added). In imposing the condition, the district court relied on evidence in the
presentence report that Zinnel struggled with excessive alcohol consumption
following his indictment in this case. The district court also noted that Zinnel
admitted to struggling with alcohol addiction previously in his life. This was a
sufficient basis to impose the condition.
5. Zinnel contends that the district court procedurally erred in imposing
supervised release standard condition 8, which would prevent Zinnel from
contacting his life partner of over 19 years during his three-year term of supervised
release. We agree. Such a ban on associating with a “life partner” implicates a
particularly significant liberty interest, and triggers “enhanced procedural
requirement[s].” United States v. Wolf Child, 699 F.3d 1082, 1091 (9th Cir. 2012);
4 United States v. Napulou, 593 F.3d 1041, 1047 (9th Cir. 2010) (quoting United
States v. Weber, 451 F.3d 552, 568 (9th Cir. 2006)). While the district court
explained that the condition was “reasonably related” to protecting the public from
further crimes Zinnel might be tempted to commit with his life partner, that was
insufficient. Under our precedent, the district court must explain why this condition
is not only reasonably related, but “necessary” to accomplish one or more of the
factors listed in 18 U.S.C. § 3583(d)(1). Wolf Child, 699 F.3d at 1092. Given that
the district court found that Zinnel and his life partner’s crimes were driven by
animosity towards Zinnel’s ex-wife, and that Zinnel’s divorce will be long finalized
by the time of his release, more explanation is needed to ensure that the condition is
“no greater deprivation of liberty than is reasonably necessary.” Id. (quoting United
States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008)). This condition is vacated
and remanded for further consideration.
6. Zinnel’s assertion that this case should be reassigned due to the district
judge’s bias is without merit. There is no proof of personal bias, and the factors
we must consider in determining whether “unusual circumstances” require
reassignment weigh in favor of remanding this case to the same judge. Medrano v.
City of Los Angeles, 973 F.2d 1499, 1508 (9th Cir. 1992).
For the forgoing reasons, we AFFIRM in part, VACATE in part, and
REMAND for resentencing consistent with this disposition.
5 FILED United States v. Zinnel, 19-10159 JUN 22 2021 MOLLY C. DWYER, CLERK BRESS, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I concur in the Court’s disposition, except for its determination that the
district court was required to give more explanation in imposing supervised release
standard condition 8. The district court conducted an extensive re-sentencing
following this Court’s prior remand, which included findings on Zinnel’s criminal
conduct with Eidson and their unwillingness to abide by court orders. I do not
believe the district court committed procedural error in determining that Zinnel
should be prevented from associating with Eidson during Zinnel’s term of
supervised release. In my respectful view, the district court during the re-sentencing
made ample findings that support its decision to impose standard condition 8.