NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30185
Plaintiff-Appellee, D.C. Nos.
2:11-cr-00173-LRS-1
v. 2:11-cr-00173-LRS
CAVON C. CLARK,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted August 10, 2022
Seattle, Washington
Before: BERZON, CHRISTEN, and FORREST, Circuit Judges.
Cavon Clark pleaded guilty to one count of production of child pornography
and one count of transportation of child pornography. Following two successful
sentencing appeals, Clark’s net prison sentence was reduced from 55 years’
imprisonment to 38 years’ imprisonment. He again appeals his sentence. As none
of his claims have merit, we affirm the district court’s sentencing decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Clark’s net prison sentence was reduced on remand by 17 years,
representing a roughly 30 percent reduction in prison time. He nevertheless argues
that, because the district court “abruptly changed course” on remand from having
his two terms of imprisonment run concurrently to having them run consecutively,
his sentence triggers the presumption of vindictiveness and violates due process.
See, e.g., Wasman v. United States, 468 U.S. 559, 564–65 (1984). Not so. When a
defendant’s overall sentence does not increase on remand and the record
demonstrates that the district court sought to impose a balanced aggregate sentence
after accounting for the totality of the circumstances, no presumption of
vindictiveness arises even if an individual component of the defendant’s sentence
has adversely changed. United States v. Horob, 735 F.3d 866, 868–72 (9th Cir.
2013) (per curiam); United States v. Bay, 820 F.2d 1511, 1512–14 (9th Cir. 1987);
United States v. Hagler, 709 F.2d 578, 579 (9th Cir. 1983). The district court
imposed Clark’s sentence in accordance with this principle.
It is of no matter that the district court did not run Clark’s sentences
consecutively until the third sentencing hearing. District courts are authorized on
remand to reconsider a defendant’s sentencing package in its entirety, even if the
basis for remand is limited to only one aspect of the sentence. Troiano v. United
States, 918 F.3d 1082, 1087 (9th Cir. 2019); see also United States v. Handa,
122 F.3d 690, 692 (9th Cir. 1997); United States v. McClain, 133 F.3d 1191, 1193
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(9th Cir. 1998). That discretion reflects the fact that “[n]o portion of the sentence
imposed on a defendant convicted of multiple crimes . . . can be said to be tied
inextricably to any one of the package of crimes before the judge.” Bay, 820 F.2d
at 1514. To the contrary, a sentencing court is free to select an overall punishment
that properly accounts for the totality of the circumstances and then tailor the
contours of the sentence for each individual crime to fit that overall goal. Id.; see
also U.S.S.G. § 5G1.2(d).
2. Clark argues that his sentence is substantively unreasonable, either
because his “functional co-defendant” Romano was sentenced to only 20 years’
imprisonment or because the district court “paid mere lip service” to his mitigation
evidence. Neither argument is availing.
Courts must consider, when selecting an appropriate sentence for a given
defendant, the sentences given to other defendants who have similar criminal
records and have been found guilty of similar conduct even if those defendants
were sentenced by a judge sitting in a different jurisdiction. See, e.g., United
States v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007). But district courts should
not create “unwarranted [sentencing] similarities” by approximating the sentence
of a co-defendant not “similarly situated.” Gall v. United States, 552 U.S. 38,
55–56 (2007); see also Rita v. United States, 551 U.S. 338, 349 (2007). Romano is
not similarly situated to Clark because, unlike Clark, he had no criminal history
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and was not convicted of transportation of child pornography. The district court
thus had a reasoned basis for imposing a lengthier sentence on Clark.
Moreover, the district court expressly took account of Clark’s impairments
and troubled background when it concluded that a sentence of 38 years’
imprisonment followed by lifetime supervised relief is a sufficient but not greater
than necessary punishment under the totality of the circumstances. That sentence
was 12 years less than the Guidelines maximum sentence. Reviewing the record,
we are not left with “a definite and firm conviction” that Clark’s sentence is
substantively unreasonable. United States v. Ressam, 679 F.3d 1069, 1086–90 (9th
Cir. 2012) (en banc) (quoting United States v. Hinkson, 585 F.3d 1247, 1260 (9th
Cir. 2009) (en banc)).
3. Clark contends that the district court did not provide an adequate
explanation for its sentencing decision. This argument also fails. The district court
explained the basis for Clark’s sentence at length and directly responded to the
substantive arguments advanced by Clark’s counsel. The court’s explanation is
sufficient to permit meaningful appellate review and promote the perception of fair
sentencing. See Gall, 552 U.S. at 50; Chavez-Meza v. United States, 138 S. Ct.
1959, 1963–64 (2018).
AFFIRMED.
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