NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10106
Plaintiff-Appellee, D.C. No.
2:17-cr-00064-KJD-GWF-1
v.
JACK WILLIAM MORGAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted May 15, 2019**
San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and LASNIK,*** District Judge.
Jack Morgan raises several challenges to his convictions for kidnapping and
conspiring to commit kidnapping, 18 U.S.C. § 1201(a)(1), (c), and his resulting life
*
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).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and
we affirm.
The district court’s failure to conduct a sua sponte competency hearing was
not plain error because “a reasonable judge would [not] be expected to experience a
genuine doubt” as to Morgan’s competence. United States v. Garza, 751 F.3d 1130,
1134 (9th Cir. 2014) (quoting United States v. Dreyer, 705 F.3d 951, 961 (9th Cir.
2013)). The absence of any “indication that [Morgan] failed to understand or assist
in his criminal proceedings” precludes a finding of plain error. United States v. Neal,
776 F.3d 645, 656 (9th Cir. 2015) (quoting Garza, 751 F.3d at 1136).
Even assuming error with respect to exclusion of evidence of Morgan’s prior
sexual relationship with the victim, any such error was harmless. See United States
v. Haines, 918 F.3d 694, 699-700 (9th Cir. 2019). There were overwhelming (and
largely undisputed) indicia of guilt, and there was no question that Morgan and the
victim ended their relationship a year and a half prior to the kidnapping. It is
inconceivable that the excluded evidence could have changed the verdict.
Likewise, assuming Morgan’s pre-trial filings and statements preserved his
constitutional speedy trial claim, that claim fails under the governing four-factor
balancing test. United States v. King, 483 F.3d 969, 976 (9th Cir. 2007). Even
crediting Morgan’s pre-trial complaints as a “prompt assertion of speedy trial
rights,” the ten-month delay here was modest and does not, if at all, weigh much in
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his favor. United States v. Gregory, 322 F.3d 1157, 1161-62 & nn.3-4 (9th Cir.
2003). On the other hand, there was a “valid reason” that “serve[d] to justify
appropriate delay”: Morgan’s co-defendant requested two short continuances to
adequately prepare his defense. Barker v. Wingo, 407 U.S. 514, 531 (1972). Morgan
concedes that the only potential prejudice he suffered was pretrial detention—yet,
his additional time in pretrial custody was far short of the “oppressive” detention
needed to demonstrate prejudice. Gregory, 322 F.3d at 1163 (quoting Doggett v.
United States, 505 U.S. 647, 654 (1992)). Considered together, these factors reflect
that Morgan’s right to a speedy trial was respected. See Barker, 407 U.S. at 530-34.
Morgan’s claim that the district court erred by failing to impose counsel,
against his will, at sentencing fails as a matter of law: the right to self-representation
extends through sentencing, so a district court is constitutionally prohibited from
doing any such thing. See Faretta v. California, 422 U.S. 806 (1975) (recognizing
right to self-representation); Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir.
2000) (clarifying that this right extends through sentencing).
Given that Morgan failed to “manifest[] genuine contrition for his acts,” the
district court’s determination that he did not accept responsibility was not clearly
erroneous. United States v. Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017) (quoting
United States v. Cantrell, 433 F.3d 1269, 1285 (9th Cir. 2006)). Even assuming that
Morgan’s advisory counsel adequately preserved Morgan’s objections to the district
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court’s upward departures, none of the departures was an abuse of discretion. See
United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015). Physical injury need
not result in permanent disfigurement to be “significant” under U.S.S.G. § 5K2.2,
and the numerous injuries suffered by the victim were unquestionably severe. The
botched use of a stun gun does not preclude a departure for the use or possession of
a weapon or dangerous instrumentality under U.S.S.G. § 5K2.6. Nor is there
evidence establishing that the rifle was inoperable and therefore clearly incapable of
inflicting bodily harm.
Finally, to the extent Morgan challenges the substantive reasonableness of his
sentence, that argument fails as well—this is not one of the “rare cases” where a
sentence is substantively unreasonable. United States v. Ressam, 679 F.3d 1069,
1088 (9th Cir. 2012).
AFFIRMED.
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