NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10193
Plaintiff-Appellee, D.C. No. 1:16-cr-00284-DKW
v.
MEMORANDUM*
TURK K. CAZIMERO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Turk K. Cazimero appeals from the district court’s judgment and challenges
the 96-month sentence imposed following his guilty-plea conviction for wire fraud,
in violation of 18 U.S.C. § 1343. 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).
Cazimero contends that the district court erred and violated his due process
rights by imposing an upward variance on the basis of unsworn victim impact
statements, the perceived leniency of his prior state court sentence, and his
inability to pay restitution. The record reflects that the district court properly based
its variance on the 18 U.S.C. § 3553(a) factors, including Cazimero’s history and
characteristics, and the need to provide just punishment for the offense. The court
did not violate due process by considering unsworn victim impact statements,
which Cazimero has not shown were materially false or unreliable. See United
States v. Christensen, 732 F.3d 1094, 1102, 1106 (9th Cir. 2013) (district court
may consider unsworn victim impact statements at sentencing; due process
violated only when sentence is imposed on the basis of materially false or
unreliable information). Nor did the court engage in impermissible double
counting by varying upwards based on the effect of the crime on the victims. See
id. at 1100-01. Moreover, the court appropriately considered the failure of
Cazimero’s prior sentence to deter him, see 18 U.S.C. § 3553(a)(1), (2)(B), as well
as the impact on the victims of his inability to pay restitution. See United States v.
Rangel, 697 F.3d 795, 804 (9th Cir. 2012) (court’s consideration of inability to pay
restitution not error where “[t]he court’s discussion made clear that its concern
over restitution was based on the impact [defendant’s] crime had on the victims
and was not designed to punish [defendant] for his inability to pay”). Finally, in
light of the section 3553(a) sentencing factors and the totality of the circumstances,
2 17-10193
the above-Guidelines sentence is substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.
3 17-10193