NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 19 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30268
Plaintiff - Appellee, D.C. No. 2:06-cr-00041-RSL-1
v.
MEMORANDUM*
RICHARD ALLEN FABEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted April 6, 2010
Seattle, Washington
Before: HAWKINS, LUCERO** and N.R. SMITH, Circuit Judges.
Richard Fabel appeals the sentence imposed by the district court on the
grounds that the court (1) committed significant procedural error by considering
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.
improper evidence during its 18 U.S.C. § 3553(a) analysis; and (2) imposed a
substantively unreasonable sentence. We affirm.
Fabel was convicted under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), for crimes in which he engaged, while he was the
president and spokesman of the “Washington Nomads,” a chapter of the Hells
Angels Motorcycle Club. The jury found that Fabel conducted the affairs of the
Nomads through a “pattern” of racketeering activity—meaning Fabel committed at
least two related predicate “racketeering acts,” in violation of 18 U.S.C. § 1962(c).
1. The district court did not rely on an improper factor during its 18 U.S.C.
§ 3553(a) analysis, and thus did not commit significant procedural error. United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The court was
entitled to consider whether Fabel accepted responsibility for his connection with
the criminal activity occurring in the Nomads, because that club was found to be a
criminal organization of which Fabel was a member. See 18 U.S.C. § 3661.
Fabel contests the court’s consideration of his lack of responsibility on
numerous grounds, each of which fails.
a. The § 3553(a) analysis acts as a separate guide for determining a
proper sentence. Carty, 520 F.3d at 991–93. As such, the Guidelines’
consideration of Fabel’s lack of acceptance of responsibility does not prohibit the
2
court from further considering such conduct, nor does it bind the sentencing court
to the approach outlined in the Guidelines.
b. At sentencing, the court may consider conduct for which Fabel was
not convicted. This does not violate Fabel’s constitutional right (1) to a trial by
jury, see United States v. Watts, 519 U.S. 148, 152 (1997), or (2) to remain silent,
see United States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990).
c. The Guidelines do not violate the statutory mandate set out for the
Sentencing Commission in 28 U.S.C. § 994 by allowing the court to consider
conduct of which Fabel was acquitted. United States v. Wong, 2 F.3d 927, 929 (9th
Cir. 1993).
d. The court’s enhancement of Fabel’s sentence for failure to accept
responsibility, on the grounds that the Guidelines did not sufficiently consider such
conduct, did not subject Fabel to double-punishment. Fabel’s challenge to the
length of time imposed by the court is more properly analyzed as an appeal to the
substantive reasonableness of the sentence imposed.
2. The district court did not impose a substantively unreasonable sentence,
when it sentenced Fabel to a 90-month term of imprisonment instead of a term
within the Guidelines range (57–71 months). We do not presume that a sentence
outside of the Guidelines range is unreasonable. Carty, 520 F.3d at 993. “For a
3
non-Guidelines sentence, we are to ‘give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’”
Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). However, a term
outside the Guidelines range will likely need a more detailed explanation justifying
the more lenient or harsh sentence. Carty, 520 F.3d at 992. We review the
substantive reasonableness of the court’s sentence for abuse of discretion, looking
to the totality of the circumstances. United States v. Autery, 555 F.3d 864, 871 (9th
Cir. 2009)
The record before us demonstrates the court’s careful consideration of the
Guidelines range, the mitigating evidence (both pre- and post-conviction), the
aggravating evidence, and all of the original and resentencing materials. Based
upon all this, the court offered a compelling justification for finding a harsher
sentence appropriate. The court found that the Guidelines range did not adequately
account for the seriousness of Fabel’s criminal activity. Particularly, the court
mentioned Fabel’s position of power and control over a criminal organization
comprised of violent individuals who preyed upon people the group saw as
compromised. We cannot find that the district court abused its discretion in
imposing the term of imprisonment.
AFFIRMED.
4