NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50341
17-50410
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00173-JLS-2
JULIEN JITT NOEL,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted March 5, 2019
Pasadena, California
Before: COLE, Chief Circuit Judge, ** FISHER, and NGUYEN, Circuit Judges.
Julien Noel appeals the district court’s decision to allow him to proceed pro
se at trial and sentencing, as well as his sentence. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
The parties are in agreement that an abuse of discretion standard applies to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ransey Guy Cole, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
district court’s decision to allow Noel to proceed pro se. See United States v.
Thompson, 587 F.3d 1165, 1170–71, n.2 (9th Cir. 2009). This “standard requires us
to uphold a district court determination that falls within a broad range of permissible
conclusions in the absence of an erroneous application of law.” Grant v. City of
Long Beach, 315 F.3d 1081, 1091 (9th Cir. 2002) (citing Cooter & Gell v. Harmarx
Corp., 496 U.S. 384, 400 (1990)).
Recognizing that “[t]he district court was in the best position to observe
[Noel’s] behavior and to make the determination that [Noel] had the mental capacity
to represent [himself,]” we cannot say that the district court abused its discretion in
allowing him to do so. United States v. Johnson, 610 F.3d 1138, 1146 (9th Cir.
2010) (citations omitted); Indiana v. Edwards, 554 U.S. 164, 177 (2008) (noting that
trial judges “will often prove best able to make more fine-tuned mental capacity
decisions, tailored to the individualized circumstances of a particular defendant”).
The district court had Noel psychiatrically evaluated on multiple occasions by
multiple experts who considered “both [Noel’s] competence to represent [himself]
as well as [his] competence to stand trial.” Johnson, 610 F.3d at 1146. And
hindsight shows us that Noel actively participated in his defense at trial: he proposed
voir dire questions, filed pretrial motions, gave an opening statement, cross-
examined witnesses, and delivered a closing argument. This type of active
participation is significant evidence of competence. See id.; Edwards, 554 U.S. at
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175–76 (holding that courts should look to whether a defendant is “unable to carry
out the basic tasks needed to present his own defense without the help of counsel”).
Consequently, we hold that the district court did not abuse its discretion in allowing
Noel to represent himself at trial.
Noel next argues that even if the court properly allowed him to proceed pro
se at trial, it should not have allowed him to continue doing so at sentencing. But
the district court’s decision was supported by an additional psychological evaluation
that concluded Noel remained competent to proceed pro se and a Field Report from
the U.S. Marshals that indicated Noel could be malingering. Thus, the district
court’s conclusion that there had “been no change in [Noel’s] mental status and that
his behavior is the result of his own decision as to how to pursue his case,” (Second
Sentencing Hr’g Tr., E.R. 440), was not an abuse of discretion. Johnson, 610 F.3d
at 1147 (“In the absence of any mental illness or uncontrollable behavior,
[defendants] had the right to present their unorthodox defenses and argue their
theories to the bitter end.”).
Finally, Noel raises two challenges to his sentence. When a defendant fails to
object at sentencing to perceived procedural errors—as was the case here—we
review for plain error. United States v. Sandoval-Orellana, 714 F.3d 1174, 1180
(9th Cir. 2013); see also United States v. Burgum, 633 F.3d 810, 814 (9th Cir. 2011).
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Noel first argues that the trial court’s two-level increase during sentencing
was an unauthorized and unexplained upward departure. But the court correctly
stated Noel’s total offense level, criminal history category, and guidelines range, and
then explicitly stated a two-level upward variance was warranted after considering
the § 3553(a) factors. There is thus no reason to find that the sentencing
enhancement was an unwarranted departure. Furthermore, the court gave an
adequate explanation for why it was imposing a variance. We thus cannot say the
district court plainly erred.
Noel next argues that the two-level enhancement was on the basis of his lack
of remorse and was inappropriately based on his decision to remain silent and/or
proceed to trial—thus violating his Fifth and Sixth Amendment rights. But the
sentencing increase was the result of consideration of a variety of permissible
factors, not just his lack of remorse, and the record does not support Noel’s argument
that the district court drew an adverse inference from his decision to remain silent.
The district court provided several reasons for the sentence increase—namely,
Noel’s behavior that demonstrated a likelihood of re-offense, the need for additional
deterrence, the need to protect the public, and the fact that “this was a sophisticated
scheme and that there has been no acknowledgement by the defendant of any of his
wrongdoing in this scheme[.]” (Second Sentencing Hr’g Tr., E.R. 450–51.)
Accordingly, despite the district court’s comments regarding Noel’s lack of remorse,
4 17-50341
there was an extensive explanation of other reasons the sentence was imposed. Noel
is thus not entitled to resentencing on this ground. See United States v. Johnston,
789 F.3d 934, 943 (9th Cir. 2015).
As to Noel’s argument regarding his decision to go to trial, it is well
established that “[a] defendant’s right to contest his guilt before a jury is protected
by the Constitution, and his decision to do so ‘cannot be held against him.’” United
States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir. 2013) (quoting United States
v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002)). As articulated above, however,
Noel’s failure to accept responsibility, or his lack of remorse, was not the sole factor
in his increase in sentence. And unlike the court in United States v. Hernandez, 894
F.3d 1104 (9th Cir. 2018), on which Noel relies, the district court here made no
comment during sentencing regarding Noel’s decision to go to trial. There is thus
no basis to conclude that the district court improperly relied on Noel’s decision to
go to trial when imposing his sentence.
AFFIRMED.
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