FILED
NOT FOR PUBLICATION JUN 13 2011
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. 10-30214
Plaintiff - Appellee, D.C. No. 1:09-cr-00089-RFC-1
v.
MEMORANDUM *
ELMER BURPEE YARLOTT, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted June 8, 2011 **
Portland, Oregon
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Elmer Yarlott, Jr. appeals his jury conviction and sentence for aggravated
sexual abuse of a minor in violation of 18 U.S.C. §§ 1153(a) and 2241(c).
Because the facts are known to the parties, we repeat them only as necessary to
*
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).
explain our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
The evidence presented was sufficient for a rational trier of fact to “have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Yarlott contends that, because the witness
testimony was partially conflicting, the evidence presented was insufficient to
support his conviction. But the purported inconsistencies he cites were before the
jury, and, “when a jury is informed of the possible challenges to a witness’
credibility and nevertheless believes the witness, the reviewing court should not
upset the jury’s credibility determination.” United States v. Leung, 35 F.3d 1402,
1405 (9th Cir. 1994). Based on the evidence and testimony before it, the jury
could rationally have concluded that Yarlott sexually abused W.K. while Yarlott
was living with her family in the spring of 2001. It was not unreasonable for the
jury to find Yarlott guilty despite some inconsistency in testimony.
The district court did not err in imposing a sentence of 400 months’
imprisonment followed by lifetime supervision. As a procedural matter, the
district court properly calculated the correct Guidelines range, treated the
Guidelines as advisory, noted that it was required to consider the 18 U.S.C.
§ 3553(a) factors, did not base the sentence on clearly erroneous facts, and
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adequately explained the sentence it selected. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). Yarlott argues on appeal that the district court
did not adequately explain the sentence selected because it did not make specific
findings regarding lifetime supervised release. There is no requirement that the
district court orally analyze the sentencing factors as to each component of the
sentence it imposes, and the district court’s discussion of the overall sentence was
procedurally proper. See id. at 992 (“What constitutes a sufficient explanation will
necessarily vary depending upon the complexity of the particular case . . . . A
within-Guidelines sentence ordinarily needs little explanation . . . .”).
Yarlott’s sentence was also substantively reasonable. Yarlott argues that,
because his sentence involves supervised release, “it must be imposed according to
the parsimony principle” that provides that a sentence be minimally sufficient to
reflect the seriousness of the offense, provide just punishment, afford adequate
deterrence, protect society from further crimes, and rehabilitate the defendant. See
18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater
than necessary, to comply with the purposes [of sentencing].”). But Yarlott’s
contention that a lesser sentence could satisfy the goals of sentencing does not
show that the district court abused its discretion in imposing the sentence it chose.
Cf. Carty, 520 F.3d at 993 (“We may not reverse just because we think a different
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sentence is appropriate.”). The district court did not abuse its discretion in
determining that a Guidelines range sentence of 400 months’ imprisonment plus
lifetime supervision was needed to serve the goals of sentencing.
AFFIRMED.
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