United States v. Sarah Vandegrift

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10510

Plaintiff-Appellee, D.C. No. 3:15-cr-00084-RCJ

v. MEMORANDUM *

SARAH MARIE VANDEGRIFT,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding

Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges.

Sarah Marie Vandegrift appeals from the district court’s judgment and

challenges the 72-month sentence imposed following her guilty-plea conviction for

receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). We have

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

*
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).
 Vandegrift contends that the district court procedurally erred by failing to

appreciate or acknowledge its discretion to vary from the child pornography

guideline based on a policy disagreement under Kimbrough v. United States,

552 U.S. 85 (2007). We review for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there was none.

The record reflects that the court adopted “most” of Vandegrift’s arguments and

found that they warranted a downward variance of 49 months, rather than the

61 months requested by the parties. Though the court did not identify which of

Vandegrift’s arguments it adopted, we presume that it understood the various bases

on which it could vary, see United States v. Carty, 520 F.3d 984, 992 (9th Cir.

2008) (en banc), and conclude that any error in failing to provide further explanation

did not affect Vandegrift’s substantial rights, see United States v. Dallman, 533 F.3d

755, 761-62 (9th Cir. 2008).

Vandegrift’s argument that the district court clearly erred by finding that she

was at risk to recidivate is also unavailing. In light of the circumstances of the

offense, the court disagreed with the parties that there was little risk of recidivism.

Assuming this was a factual finding, it was not “illogical, implausible, or without

support in the record.” United States v. Spangle, 626 F.3d 488, 497 (9th Cir.

2010).

Finally, Vandegrift contends that the 72-month custodial sentence and

15-year term of supervised release are substantively unreasonable in light of her

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mitigating personal characteristics and her potential victimization in prison. The

district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,

51 (2007). The substantially below-Guidelines sentence and within-Guidelines

term of supervised release are substantively reasonable in light of the 18 U.S.C.

§ 3553(a) sentencing factors and the totality of the circumstances. See Gall, 552 U.S.

at 51.

AFFIRMED.

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