United States v. Bobby Langley

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 19 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-50110

Plaintiff - Appellee, D.C. No. 8:12-cr-00068-JVS-

v.

MEMORANDUM*

BOBBY LANGLEY, AKA Robert Langley

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California James v. Selna, District Judge, Presiding

Argued and Submitted July 9, 2014 Pasadena, California

Before: BERZON and CLIFTON, Circuit Judges, and ROSENTHAL, District Judge.**

Pursuant to a plea agreement, Defendant Bobby Langley pleaded guilty to

two counts of mail fraud in violation of 18 U.S.C. § 1341. He appeals the district

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Lee H. Rosenthal, District Judge for the U.S. District Court for the Southern District of Texas, sitting by designation. court’s imposition of a 21-month sentence, specifically challenging its application

of a two-level sentencing enhancement under…

concurring in part and dissenting in part.

I concur in Section 1 of the memorandum disposition. For the reasons below, I respectfully dissent from Section 2.

A district court’s finding of fact that is “without support in inferences that may be drawn from the facts in the record” is clearly erroneous. United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir.2012) (internal quotation marks omitted). And, where the application of an enhancement under the sentencing guidelines requires finding additional facts, the government has the burden of proving the necessary facts by a preponderance of the evidence. *572 See, e.g., United States v. Guzman-Mata, 579 F.3d 1065, 1072 (9th Cir.2009).

A district court cannot rely solely on the characterization of a factual record in a Presentence Report (“PSR”) where a defendant objects that the evidence supporting this characterization is insufficient. United States v. Flores, 725 F.3d 1028, 1040-41 (9th Cir.2013). Moreover, as “[a] merely speculative logic cannot displace the need for evidence” proving the applicability of an enhancement, “assumption or inference not based on fact” will not do. Id. at 1040 (quoting United States v. Jordan, 291…

MEMORANDUM **

Pursuant to a plea agreement, Defendant Bobby Langley pleaded guilty to two counts of mail fraud in violation of 18 U.S.C. § 1341 . He appeals the district court’s imposition of a 21-month sentence, specifically challenging its application of a two-level sentencing enhancement under U.S.S.G. § 2Bl.l(b)(ll)(C)(i) for unauthorized transfer or use of a means of identification to produce another means of identification.

(1) The government did not breach the plea agreement. The government may breach a plea agreement where it attempts to influence the district court in favor of imposing a sentence greater than the one it agreed to recommend. United States v. Ellis, 641 F.3d 411, 417 (9th Cir.2011). However, “[a] plea agreement does not bar the government from honestly answering the district court’s questions. To the contrary, honest response of the government to direct judicial inquiry is a prosecutor’s professional obligation that cannot be barred, eroded or impaired by a plea agreement.” United States v. Allen, 434 F.3d 1166, 1175 (9th Cir.2006) (quoting United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir.2000)) (internal quotation marks omitted).

The prosecutor…