FILED
NOT FOR PUBLICATION DEC 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50015
Plaintiff - Appellee, D.C. No. 2:11-cr-00958-SJO-1
v.
MEMORANDUM*
CHRISTOPHER CHANEY, AKA
anonygrrl, AKA jaxjaguars911, AKA
trainreqsuckswhat,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted December 9, 2015
Pasadena, California
Before: REINHARDT, FISHER, and NGUYEN, Circuit Judges.
Defendant Christopher Chaney appeals his sentence of 120 months resulting
from his conviction by guilty plea of several counts of Unauthorized Access to a
Protected Computer, Unauthorized Damage to a Protected Computer, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Wiretapping. These counts arise from a computer hacking scheme in which
Chaney illegally accessed the email accounts of high-profile celebrities, stole their
private information and intimate photographs, and distributed that information to
third parties.1
1. Chaney first argues that he was denied effective assistance of counsel on
three grounds: (i) that his counsel misunderstood relevant sentencing guidelines
which affected the validity of his plea, (ii) that counsel failed to object to the loss
amount used to calculate the Sentencing Guidelines range, and (iii) that counsel
advised him to do media interviews which ultimately prejudiced him at sentencing.
Claims of ineffective assistance of counsel are generally inappropriate on direct
appeal unless the record is sufficiently developed to permit review of the claim or
the legal representation was so inadequate that it obviously denied a defendant his
Sixth Amendment right to counsel. United States v. McKenna, 327 F.3d 830, 845
(9th Cir. 2003). Neither is true in this case. Accordingly, we deny Chaney’s claim
of ineffective assistance of counsel without prejudice to raising the claim in a
habeas petition under 28 U.S.C. § 2255.
1
The parties are familiar with the facts of this case and we do not repeat
them in great detail here.
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2. Chaney next argues that the district court inappropriately applied a two-
level enhancement for sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C). An
offense involves sophisticated means when it involves “especially complex or
especially intricate offense conduct pertaining to [its] execution or concealment.”
U.S.S.G. § 2B1.1, cmt. n.9(b). As an initial matter, the parties debate the
applicable standard of review. Even reviewing de novo, however, we conclude
that application of the enhancement was appropriate because the totality of
Chaney’s conduct over the course of his scheme showed he intentionally engaged
in a sufficient level of planning and concealment to justify the enhancement.
3. Third, Chaney argues that the district court violated Federal Rule of
Criminal Procedure 32(i)(3)(B). According to that rule, if a defendant makes a
specific allegation of factual inaccuracy in the presentence report, the district court
must expressly resolve the dispute on the record or determine that a ruling on the
matter is unnecessary because the matter will not affect sentencing or the court will
not determine the matter in sentencing. United States v. Christensen, 732 F.3d
1094, 1102 (9th Cir. 2013). In this case, Chaney did not make a specific allegation
of factual inaccuracy; he only challenged the inferences that could be drawn from
the presentence report’s statement that child pornography was found on his
computer. Thus, there was no Rule 32 dispute for the district court to resolve.
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4. Fourth, Chaney argues that the district court violated his due process
rights by considering written victim impact statements by T.B. and T.C., two
young women who alleged that Chaney cyberstalked and harassed them for many
years. These statements, however, were accompanied by “some minimal indicia of
reliability,” and the district court could therefore consider them when determining
Chaney’s sentence. See, e.g., United States v. Petty, 982 F.2d 1365, 1369 (9th Cir.
1993).
5. Fifth, Chaney argues that the district court committed procedural error by
failing to adequately explain the reason he imposed an above-Guidelines sentence,
rather than a below-Guidelines sentence as requested by Chaney. He is wrong.
The district court gave a lengthy and complete explanation as to why he believed
that, notwithstanding Chaney’s arguments to the contrary, the § 3553(a) factors
necessitated an above-Guidelines sentence.
6. Finally, Chaney argues that his sentence was substantively unreasonable
because it is higher than similar sentences imposed in the Central District of
California for hacking crimes. This argument is meritless. As we explained in
United States v. Treadwell, it does not “matter for the purposes of § 3553(a) that
[the defendant] can point to a specific criminal defendant . . . who may have
received a lighter sentence . . . . A district court considers the § 3553(a) factors to
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tailor a sentence to the specific characteristics of the offense and the defendant.”
593 F.3d 990, 1011–12 (9th Cir. 2010). As the district court explained when
justifying the above-Guidelines sentence imposed, Chaney’s offense and
circumstances are sufficiently unique to justify the high sentence that he received.
Accordingly, we affirm Chaney’s conviction and sentence.
AFFIRMED.
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