NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50087
Plaintiff-Appellee, D.C. No.
2:10-cr-00923-SJO-30
v.
ANTHONY GABOUREL, AKA Bandit, MEMORANDUM*
AKA Anthony Gabour, AKA Anthony
Gaboural, AKA Anthony Desawn Gabourel,
AKA Anthony Deshawn Gabourel, AKA
Anthony Deshawn Gabriel, AKA Anthony
Deshawn Garbourel, AKA Vernon,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted July 9, 2021**
Pasadena, California
Before: WATFORD and BUMATAY, Circuit Judges, and FREUDENTHAL,***
District Judge.
*
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 Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
Anthony Gabourel was convicted of conspiracy to engage in racketeering
(Count One), conspiracy to commit murder in aid of racketeering (Count Two), and
possession of a firearm in furtherance of a crime of violence (Count Seven). In this
appeal, he challenges his sentence only. We have jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291 and review unpreserved objections for plain error.
United States v. Doe, 705 F.3d 1134, 1153 (9th Cir. 2013).
1. At Gabourel’s initial sentencing, the district court imposed a sentence
of 40 years, which consisted of 35 years imprisonment on Count One and ten years
on Count Two, to be served concurrently, and five years on Count Seven, to be
served consecutively. Following the Supreme Court’s holding in Johnson v. United
States, 576 U.S. 591 (2015) (rendering the Armed Career Criminal Act’s residual
clause definition of “violent felony” void for unconstitutional vagueness), Gabourel
successfully moved before the district court under 28 U.S.C. § 2255 to vacate his
conviction on Count Seven. The district court then held resentencing, and again
sentenced Gabourel to 40 years. This time, the district court imposed a sentence of
40 years on Count One and ten years on Count Two, to be served concurrently.
Gabourel did not object to the terms of his new sentence before the district court but
filed a timely notice of appeal.
The district court did not err in resentencing Gabourel on all counts. When a
sentencing enhancement is vacated, a district court may reconsider a defendant’s
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entire sentencing package. Troiano v. United States, 918 F.3d 1082, 1087 (9th Cir.
2019). The district court adequately considered the sentencing factors under 18
U.S.C. § 3553(a) and believed under those factors that Gabourel should be
incarcerated for a term of 40 years. It was therefore within the court’s discretion to
adjust the terms of Counts One and Two to meet that goal, following the vacatur of
Count Seven’s mandatory five-year consecutive sentence. Id. Our court has
explicitly approved of similarly modifying sentences, so long as the original
aggregate term of imprisonment is not exceeded. See United States v. Horob, 735
F.3d 866, 870 (9th Cir. 2013) (“A sentence is not more severe merely because a
mandatory sentence has been eliminated if the overall sentence remains the same
and ‘there is no net increase in his punishment.’” (quoting United States v. Hagler,
709 F.2d 578, 579 (9th Cir. 1983))).
2. In addition, the district court sufficiently explained Gabourel’s
sentence. Gabourel’s argument that the court “bootstrapped its findings and
conclusions from the original sentence . . . without stating what they were” lacks
merit. The district court was not prohibited from incorporating Gabourel’s
presentence report (PSR) recommendations or conclusions from his previous
sentencing hearing. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008)
(“[A]dequate explanation in some cases may [be] inferred from the PSR or the record
as a whole.”). Even without relying on its prior reasoning, the district court
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sufficiently explained its chosen sentence at the resentencing. Rita v. United States,
551 U.S. 338, 356 (2007) (“The sentencing judge should set forth enough
[explanation] to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.”).
AFFIRMED.
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