United States v. Shayne Ziska

FILED
NOT FOR PUBLICATION DEC 28 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50336

Plaintiff - Appellee, D.C. No. 2:04-cr-01002-TJH-1

v.
MEMORANDUM*
SHAYNE ALLYN ZISKA,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding

Argued and Submitted November 1, 2010
Pasadena, California

Before: PREGERSON, RIPPLE,** and GRABER, Circuit Judges.

Shayne Ziska was charged in a five-count indictment with conspiracy to

engage in racketeering activities, in violation of 18 U.S.C. § 1962(d) (Count 1),

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
two counts of committing a violent crime in aid of racketeering (“VICAR”), in

violation of 18 U.S.C. §§ 1959(a)(3) and 2(a) (Counts 2 and 4), and two counts of

deprivation of civil rights (Counts 3 and 5), in violation of 18 U.S.C. § 242. Mr.

Ziska was tried by the court and convicted on Counts 1, 4 and 5. The district court

sentenced Mr. Ziska to 210 months’ imprisonment, and he appealed his conviction

and sentence. This court affirmed his conviction, but remanded for resentencing

because the offense level had been calculated incorrectly; specifically, the

probation department had calculated the offense level at 35, but, correctly

calculated, his offense level should have been 34. United States v. Ziska, 267 F.

App’x 717, 719 (9th Cir. 2008).

On remand, Mr. Ziska represented himself during resentencing, and the

district court reimposed a 210-month sentence. Mr. Ziska now appeals his

conviction and sentence for a second time.

Mr. Ziska first claims that the Government did not prove that he had the

requisite intent to sustain his conviction on Count 4. Mr. Ziska raised the issue of

the sufficiency of the evidence on Count 4 in his prior appeal, and that issue was

resolved by this court. See id. There has been no intervening change in law, or

other exceptional circumstances, that might warrant revisiting our prior

determination. See United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999).

2
Mr. Ziska also maintains that, under this court’s case law, his waiver of his

right to counsel at resentencing was ineffectual because the district court, at the

time of the waiver, failed to apprise him of the maximum penalty he faced. We

have held, however, that the district court’s failure to apprise the defendant of a

specific risk of self-representation does “not necessitate automatic reversal when

the record as a whole reveals a knowing and intelligent waiver.” United States v.

Balough, 820 F.2d 1485, 1488 (9th Cir. 1987); see also United States v. Gerritsen,

571 F.3d 1001, 1010 (9th Cir. 2009) (observing that “[t]he Supreme Court has

directed us to take a ‘pragmatic approach to the waiver question,’ and we are

mindful of its warning not to establish rigid requirements that must be met before a

defendant is deemed to have effectively waived counsel” (quoting Iowa v. Tovar,

541 U.S. 77, 90 (2004))). Our review of the record as a whole convinces us that

Mr. Ziska knowingly, intelligently and voluntarily waived his right to counsel on

resentencing.

Finally, Mr. Ziska takes issue with various aspects of the district court’s

offense-level calculation. Whether Count 5 is considered an act in furtherance of

the conspiracy charged in Count 1 or whether it is considered one of a group of

related convictions, Mr. Ziska’s conviction on Count 5 provides the basis for

determining his sentence because it yields the greatest offense level. See U.S.S.G.

3
§§ 2E1.1(a)(2) cmt. n.1, 3D1.2 (2005). With respect to that count, the presentence

report correctly identified U.S.S.G. § 2A1.1 as the most analogous guideline to the

conduct established by the offense of conviction--the assault on Nathan Johnson.

Additionally, the district court did not err when it applied the seven-level

increase for permanent bodily injury under U.S.S.G. § 2A2.2(b)(3) without making

specific findings as to the permanency of Johnson’s injury. See Fed. R. Crim. P.

32(i)(3)(B). Mr. Ziska did not present to the district court any evidence calling

into question the nature of Johnson’s injuries; consequently, there was no factual

dispute for the district court to resolve on the record. See United States v. Stoterau,

524 F.3d 988, 1011 (9th Cir. 2008) (stating that “[o]nly specific factual objections

trigger [the requirements of] Rule 32(i)(3)(B)” to resolve disputes on the record).

Finally, the district court did not plainly err in increasing Mr. Ziska’s offense

level by two units pursuant to U.S.S.G. § 3D1.4 for the assaults on Johnson and

Mark Krueger. We cannot determine that the district court’s reliance on the

assaults as underlying racketeering activity was “so clear-cut” or “so obvious” that

“a competent district judge should be able to avoid [the error] without benefit of

objection.” United States v. Klinger, 128 F.3d 705, 712 (9th Cir. 1997) (quotation

marks and citation omitted).

AFFIRMED