FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10463
Plaintiff - Appellee, D.C. No. 2:07-CR-00871-ROS-1
v.
MEMORANDUM *
HANOI BARBARO ACOSTA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Hanoi Barbaro Acosta appeals from the 262-month sentence imposed
following his conviction by jury trial for transportation of a minor in interstate
commerce for prostitution, in violation of 18 U.S.C. § 2423(a) and (e). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Acosta contends that the district court erred by applying several sentencing
enhancements, and that the sentence was procedurally and substantively
unreasonable.
This court reviews de novo the district court’s interpretation of the
sentencing guidelines. United States v. Dixon, 201 F.3d 1223, 1233, (9th Cir.
2000). This court reviews for clear error the factual findings underlying the
sentencing decision. United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir. 1997).
Acosta contends that the district court erred by failing to find certain
enhancements by clear and convincing evidence. Acosta did not make this
argument to the district court, so we review only for plain error. See United States
v. Olano, 507 U.S. 725, 730-32 (1993). Clear and convincing evidence is required
where, as here, the enhancements had a “disproportionate impact” on the sentence.
See United States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001). Here, because the
challenged enhancements added ten levels to Acosta’s offense level and more than
doubled the applicable Guidelines range, we agree that a finding by clear and
convincing evidence was required. However, a review of the record satisfies us
that, although the district court did not apply the clear and convincing standard, the
enhancements imposed on Acosta were established by clear and convincing
evidence. The district court’s sentencing determination followed a trial at which
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Acosta had the opportunity to cross-examine witnesses against him and at which
the jury made the relevant findings beyond a reasonable doubt when they found
Acosta guilty of the offense. Accordingly, the district court did not plainly err in
applying the challenged enhancements at sentencing.
This court reviews a sentence’s reasonableness by reviewing “the district
court’s application of the Sentencing Guidelines de novo, the district court’s
application of the Sentencing Guidelines to the facts of a case for abuse of
discretion, and the district court’s factual findings for clear error.” United States v.
Grissom, 525 F.3d 691, 696 (quoting United States v. Cantrell, 433 F.3d 1269,
1279 (9th Cir. 2006)). “The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decision[-]making authority.” Rita v. United
States, 551 U.S. 338, 356 (2007); see also 18 USC § 3553(c). Further, while
judges should state their reasons on the record, “adequate explanation in some
cases may also be inferred from the PSR or the record as a whole.” United States
v. Carty, 520 F. 3d 984, 992 (9th Cir. 2008) (en banc). The district court had
before it the oral arguments and sentencing memoranda of both parties, as well as
the PSR, and considered the salient arguments on the record. The district court
sentenced Acosta in a procedurally sound manner.
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“[W]hen the judge’s discretionary decision accords with the [Sentencing]
Commission’s view of the appropriate application of [18 USC] § 3353(a) in the
mine run of cases, it is probable that the sentence is reasonable.” Rita, 551 US at
351. Here the district court imposed a sentence at the low end of the advisory
Guidelines range and gave an adequate explanation for the sentence. Under the
totality of the circumstances, the sentence was substantively reasonable. See
Carty, 520 F.3d at 993.
AFFIRMED.
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