NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50394

Plaintiff-Appellee, D.C. No. 3:15-cr-00902-JLS

v.

MEMORANDUM*

SCOTT HOWARD KIMBALL,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Scott Howard Kimball appeals his jury-trial conviction and 168-month

sentence for inference with commerce by robbery and aiding and abetting, in

violation of 18 U.S.C. §§ 2 and 1951. We have jurisdiction under 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 panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Following his conviction, Kimball moved for a new trial under Federal Rule

of Criminal Procedure 33, arguing that his trial counsel had been ineffective. The

district court denied the motion, concluding that, while the record was

insufficiently developed as to whether counsel had performed deficiently, Kimball

had failed to show prejudice from the allegedly deficient performance. We review

this conclusion de novo. See United States v. Labrada-Bustamante, 428 F.3d

1252, 1260 (9th Cir. 2005).

As an initial matter, we reject the government’s argument that the record is

insufficiently developed to permit determination of Kimball’s ineffective

assistance claim on direct appeal. As the district court concluded, the record is

sufficiently developed to show that, even if counsel’s performance was deficient, it

did not prejudice Kimball. See id. at 1261 (rejecting ineffective assistance of

counsel claim on direct appeal because, assuming counsel performed deficiently,

there was no prejudice to defendant). The testimony that Kimball alleges should

have been presented would have been cumulative and would not have changed the

outcome at trial, given the other evidence in the record. See Strickland v.

Washington, 466 U.S. 668, 694 (1984) (to demonstrate prejudice for purposes of

an ineffective assistance claim, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different”).

2 16-50394 Kimball also contends that his sentence is substantively unreasonable in

light of his age and personal characteristics, the facts of the offense, the disparity

between his sentence and the sentence received by his co-defendant, and the length

of his previous sentences. The district court did not abuse its discretion. See Gall

v. United States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and

the totality of the circumstances, including Kimball’s substantial criminal history.

See Gall, 552 U.S. at 51; see also United States v. Carter, 560 F.3d 1107, 1121

(9th Cir. 2009) (a sentencing disparity that results from one defendant’s

cooperation is not unwarranted).

AFFIRMED.

3 16-50394