United States v. Randy Jordan

FILED
NOT FOR PUBLICATION DEC 20 2016

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-30246

Plaintiff-Appellee, D.C. No. 4:14-cr-00222-BLW

v.
MEMORANDUM*
RANDY TED JORDAN,

Defendant-Appellant,

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding

Submitted December 14, 2016**

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Randy Ted Jordan appeals from the district court’s judgment and challenges

the 120-month-sentence imposed following his guilty-plea conviction for two

*
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). Jordan’s request for oral argument is,
therefore, denied.
counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Jordan contends that the district court procedurally erred by giving improper

consideration to dismissed counts, relying on clearly erroneous facts, and failing to

explain adequately the sentence. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and there was no error.

Contrary to Jordan’s contention, the district court did not consider dismissed

counts as relevant conduct under U.S.S.G. § 1B1.3; rather, the district court

departed upward under U.S.S.G. § 5K1.21. The record further reflects that the

district court thoroughly explained its reasons for imposing the above-Guidelines

sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

Moreover, the court’s characterization of Jordan’s criminal history as violent was

not clearly erroneous. See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir.

2010) (“A finding is clearly erroneous if it is illogical, implausible, or without

support in the record.”).

Jordan next contends that his sentence is substantively unreasonable. The

district court did not abuse its discretion in imposing Jordan’s sentence. See Gall

v. United States, 552 U.S. 38, 51 (2007). The above-guidelines sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality

2 15-30246
of the circumstances, including Jordan’s lengthy criminal history and the need to

protect the public. See Gall, 552 U.S. at 51.

Finally, the district court was not obligated to impose a within-Guidelines

sentence as a result of accepting the plea agreement. See Fed. R. Crim. P.

11(c)(1)(B); United States v. Graibe, 946 F.2d 1428, 1432 (9th Cir. 1991).

AFFIRMED.

3 15-30246