FILED
NOT FOR PUBLICATION OCT 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50389
Plaintiff - Appellee, D.C. No. 2:09-cr-00483-DDP-1
v.
MEMORANDUM *
DWAYNE PHELPS, AKA Dewayne
Phelps,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted September 1, 2011
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and NAVARRO, District
Judge.**
Dwayne Phelps appeals the sentence imposed by the district court following
Phelps’s guilty plea to six counts of bank robbery in violation of 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gloria M. Navarro, District Judge for the District of
Nevada, sitting by designation.
§ 2113(a). The district court sentenced Phelps to 151 months, at the low end of the
advisory Sentencing Guidelines range, to be followed by a three-year term of
supervised release. We review the district court’s sentencing decision for abuse of
discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)
(citation omitted).
Phelps contends that the sentence imposed is procedurally unreasonable
because 1) the district court did not give due consideration to the requisite 18
U.S.C. § 3553(a) factors; 2) the district court gave too much weight to the need to
protect the community; and 3) the district court did not adequately explain its
reasons for the chosen sentence. We disagree.
First, while the district court must consider all factors set out in 18 U.S.C.
§ 3553(a) before imposing a sentence, “[t]he district court need not tick off each of
the section 3553(a) factors to show that it has considered them.” Carty, 520 F.3d at
992. Here, the district court gave the defense ample opportunity to describe
Phelps’s specific set of circumstances, and the district court considered Phelps’s
personal circumstances in addition to the other § 3553(a) factors. The district court
mitigated the sentence by imposing a custodial term at the low end of the advisory
Guidelines range and by ordering that Phelps’s sentence run concurrently with his
other sentences for violating his prior supervised release and parole.
Second, in considering the § 3553(a) factors, the district court is not required
to accord equal weight to each and every fact or circumstance. See Gall v. United
States, 552 U.S. 38, 57 (2008) (stating that it was not unreasonable for the
sentencing judge to attach “great weight” to a single consideration when the
circumstances merited such weight). It was not unreasonable for the district court
to determine that the need to protect the community took on deeper significance in
light of Phelps’s 30-year history of recidivism. This emphasis, after reasonable
consideration of the other § 3553(a) factors, does not render the resulting sentence
unreasonable. See id.
Third, there is no merit to Phelps’s contention that the district court did not
adequately explain on the record its reasoning for selecting the sentence. The
district court both adopted the analysis and recommendations of Phelps’s federal
probation officer and discussed its own reasoning during the sentencing hearing.
See Carty, 520 F.3d at 992 (“[Reasonable] explanation communicates that the
parties’ arguments have been heard, and that a reasoned decision has been made. It
is most helpful for this to come from the bench, but adequate explanation in some
cases may also be inferred from the [pre-sentencing report] or the record as a
whole.”).
Phelps next argues that the sentence is substantively unreasonable because
the purpose of the sentence was to address Phelps’s personal needs and the career
offender guideline was unreasonable as applied to Phelps. Again, we disagree.
It is true that the district court adopted the probation officer’s analysis and
recommendation for sentence, which opined that a custodial placement would be
the best option for addressing Phelps’s particular circumstances, but the district
court then expressly said that the sentence imposed was not motivated by this
opinion. See Tapia v. United States, 131 S. Ct. 2382, 2392 (2011) (“A court
commits no error by discussing the opportunities for rehabilitation within prison or
the benefits of specific treatment or training programs. To the contrary, a court
properly may address a person who is about to begin a prison term about these
important matters.”).
Nor does the record suggest that the career offender guideline enhancement
was unreasonable as applied to Phelps. Between 1981 and 2009, Phelps committed
at least 13 bank robberies. The nature of Phelps’s unremitting criminal activity,
including threats of violence during the commission of his crimes, supports that the
application of the career offender enhancement to Phelps was not substantively
unreasonable. If Phelps was not a career bank robber, then no one is.
Finally, Phelps argues that the oral pronouncement of sentence is not
consistent with the written judgment. But there is no conflict between the district
court’s oral pronouncement of sentence and the district court’s written order. See
United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). Also,
although in its written judgment and commitment order the district court did not
memorialize its oral pronouncement that Phelps’s supervised release revocation
sentence of 24 months would run concurrently with his 151 month sentence, the
pronouncement was memorialized in the written supervised release revocation
judgment. Taken together, the judgment and commitment order and the supervised
release revocation order are consistent with the district court’s oral pronouncement
of sentence.
AFFIRMED.