NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 20 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 08-10491
Plaintiff - Appellee, D.C. No. 1:06-CR-00299-AWI-1
v.
MEMORANDUM*
KEITH DAVID GOODWIN,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted September 1, 2010
San Francisco, California
Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.
Defendant-Appellant Keith Goodwin timely appeals his convictions for
seventeen counts of fraud. Because the parties are familiar with the facts and
procedural history of this case, we will discuss them only as necessary to explain
our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Goodwin first argues that his motion for a new trial based on the
government’s violation of its duties pursuant to Brady v. Maryland, 373 U.S. 83
(1963), was erroneously denied. To show a due process violation based on the
prosecution’s suppression of material evidence favorable to the accused, a
defendant must show that (1) the evidence was favorable to the accused, either
exculpatory or impeaching, (2) the evidence was suppressed by the government,
and (3) the defendant was prejudiced. Jackson v. Brown, 513 F.3d 1057, 1071 (9th
Cir. 2008) (citing Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). By
submitting only an unsigned declaration to prove his claims, and not
supplementing the record with a signed substitute, Goodwin has failed to
demonstrate that the favorable evidence exists, much less that it was suppressed.
Goodwin next contends that the district court should have granted his
motion for a new trial, because a government witness lied. To show a due process
violation based on knowingly perjured testimony, a defendant must show that (1)
the testimony was false, (2) the government knew or should have known that the
testimony was false, and (3) the testimony was material. Jackson, 513 F.3d at
1071–72 (quoting Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc));
see also Napue v. Illinois, 360 U.S. 264, 269 (1959). To the extent Goodwin still
relies on a claim that government witnesses falsely testified that they had not
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interviewed Garrett Goodwin, that is belied by the record. With respect to Agent
Arico’s testimony about how many photographs were shown to witness Maria
Vargas, Goodwin has failed to show that the testimony was false.
Next, Goodwin complains that the district court erred in triple counting
losses in calculating loss for purposes of U.S.S.G. § 2B1.1(b). By abandoning this
argument below, Goodwin waived it. United States v. Manarite, 44 F.3d 1407,
1419 n.18 (9th Cir. 1995). Further, the record reflects no triple counting.
Finally, Goodwin alleges that the district court abused its discretion in
sentencing him to only partially concurrent sentences on his four convictions for
Aggravated Identity Theft. A violation of 18 U.S.C. § 1028A requires a two-year
term for each conviction, consecutive to the underlying offense. However, the
court may exercise its discretion to run multiple terms concurrently, in whole or in
part, as long as it considers the guidelines and policy statements of the Sentencing
Commission. 18 U.S.C. § 1028A(b)(4). The district court did so. It did not abuse
its discretion. United States v. Rosas, __ F.3d __, Nos. 09-10011 & 09-10013,
2010 WL 3211732, at *6 (9th Cir. Aug. 16, 2010).
AFFIRMED.
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