NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50394
Plaintiff-Appellee, D.C. No. 3:15-cr-00902-JLS
v.
MEMORANDUM*
SCOTT HOWARD KIMBALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Scott Howard Kimball appeals his jury-trial conviction and 168-month
sentence for inference with commerce by robbery and aiding and abetting, in
violation of 18 U.S.C. §§ 2 and 1951. 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).
Following his conviction, Kimball moved for a new trial under Federal Rule
of Criminal Procedure 33, arguing that his trial counsel had been ineffective. The
district court denied the motion, concluding that, while the record was
insufficiently developed as to whether counsel had performed deficiently, Kimball
had failed to show prejudice from the allegedly deficient performance. We review
this conclusion de novo. See United States v. Labrada-Bustamante, 428 F.3d
1252, 1260 (9th Cir. 2005).
As an initial matter, we reject the government’s argument that the record is
insufficiently developed to permit determination of Kimball’s ineffective
assistance claim on direct appeal. As the district court concluded, the record is
sufficiently developed to show that, even if counsel’s performance was deficient, it
did not prejudice Kimball. See id. at 1261 (rejecting ineffective assistance of
counsel claim on direct appeal because, assuming counsel performed deficiently,
there was no prejudice to defendant). The testimony that Kimball alleges should
have been presented would have been cumulative and would not have changed the
outcome at trial, given the other evidence in the record. See Strickland v.
Washington, 466 U.S. 668, 694 (1984) (to demonstrate prejudice for purposes of
an ineffective assistance claim, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”).
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Kimball also contends that his sentence is substantively unreasonable in
light of his age and personal characteristics, the facts of the offense, the disparity
between his sentence and the sentence received by his co-defendant, and the length
of his previous sentences. The district court did not abuse its discretion. See Gall
v. United States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and
the totality of the circumstances, including Kimball’s substantial criminal history.
See Gall, 552 U.S. at 51; see also United States v. Carter, 560 F.3d 1107, 1121
(9th Cir. 2009) (a sentencing disparity that results from one defendant’s
cooperation is not unwarranted).
AFFIRMED.
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