NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10106
Plaintiff-Appellee, D.C. No.
1:17-cr-00136-LJO-SKO-1
v.
CRAIG MARTIN SHULTS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted June 10, 2020
San Francisco, California
Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,** District Judge.
Craig Shults appeals his conviction and 72-month sentence for threatening to
assault Judge Andrew Guilford with intent to retaliate on account of the
performance of his official duties, in violation of 18 U.S.C. § 115(a)(1)(B). We
have jurisdiction pursuant to 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 Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
1. The district court did not abuse its discretion in admitting the
Valkovich testimony. See United States v. Major, 676 F.3d 803, 807 (9th Cir.
2012) (stating standard of review). Valkovich’s testimony clearly satisfies the
requirements of Federal Rule of Evidence 404(b). His testimony that Shults
repeatedly offered to pay him to solicit the murder of Judge Guilford and others
tends to show that, at the time Shults made the earlier charged threats in
conversation with Knox, Shults had a “plan” for carrying them out (hiring a hit
man), the “opportunity” to carry them out (possession of sufficient money to pay a
hit man), and the “intent” to carry them out (because he would subsequently take
more concrete steps to do so). Fed. R. Evid. 404(b).
The district court did not abuse its discretion in finding the “probative value”
of Valkovich’s testimony not “substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. His testimony was highly probative to prove intent
and to disprove the defense theory that Shults was only bluffing. Its probative
value was not materially diminished by the prosecution’s decision not to call Knox
to testify, as it was highly relevant to the jury’s interpretation of the recorded
conversation between Shults and Knox.
2. The district court did not plainly err with regard to Shults’ right to
allocute at his sentencing hearing. See United States v. Jordan, 256 F.3d 922, 926
(9th Cir. 2001) (stating standard of review). The district court afforded Shults the
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required opportunity to speak pursuant to Federal Rule of Criminal Procedure
32(i)(4)(A)(ii), and Shults declined the opportunity. See United States v. Mack,
200 F.3d 653, 657–58 (9th Cir. 2000). Although the court reporter heard Shults
later ask his lawyer, “Can I say something?,” the record does not reflect that the
court heard the request, nor that the request was to speak to the court, rather than
just to counsel.
3. The district court did not plainly err by applying the preponderance of
the evidence standard to the sentencing enhancements. See Jordan, 256 F.3d at
926 (stating standard of review). As to the six-level intent enhancement, U.S.S.G.
§ 2A6.1(b)(1), due process considerations do not favor requiring clear and
convincing evidence, because the facts underlying the enhancement stemmed from
the conduct of which Shults was convicted. See United States v. Hymas, 780 F.3d
1285, 1289–92 (9th Cir. 2015). Meanwhile, with the exception of factor 5, the
Valensia factors either weigh against the higher standard, are not relevant, or are
inconclusive because it is unclear what the relevant baseline is. See Jordan, 256
F.3d at 928 (listing six factors first articulated in United States v. Valensia, 222
F.3d 1173, 1182 (9th Cir. 2000), cert. granted, judgment vacated, 532 U.S. 901
(2001)).
As to the two-level multiple-threats enhancement, U.S.S.G. §
2A6.1(b)(2)(A), it had only a minimal effect on the sentence, not an “extremely
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disproportionate” effect. United States v. Hopper, 177 F.3d 824, 833 (9th Cir.
1999) (quoting United States v. Restrepo, 946 F.2d 654, 659 (9th Cir. 1991) (en
banc)). Thus, considered separately, it was not plain error to apply a
preponderance standard to the challenged enhancements.
Even if the sentencing enhancements had an “extremely disproportionate”
effect when considered in the aggregate, our precedents do not clearly require this
method of calculation. Compare Jordan, 256 F.3d at 928 (interpreting Valensia to
require that the court aggregate the challenged enhancements), with Hymas, 780
F.3d at 1290–91 (separating a single loss enhancement into two parts).
Accordingly, it was not plain error for the district court to apply a preponderance
of the evidence standard.
AFFIRMED.
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