FILED

NOT FOR PUBLICATION

SEP 13 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10229

Plaintiff-Appellee, D.C. No. 3:17-cr-00098-LRH-VPC-1 v.

MATHEW HOVIOUS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted September 11, 2019** San Francisco, California

Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges.

Mathew Hovious (“Hovious”) appeals from his sentence of 96 months in

prison from a conviction for bank robbery, in violation of 18 U.S.C. § 2113(a),

* 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 open guilty plea, on the basis that the sentence was substantively

unreasonable. Hovious also asks the court to vacate two conditions of supervised

release: a warrantless search condition and an employment restriction condition

that would prevent him from dealing with money.

On October 23, 2017, Hovious entered a US Bank branch and handed a

teller a threatening note claiming he had a gun and an accomplice and demanding

small denomination bills. The teller collected cash from her drawer and handed it

to him in an amount later determined to be $2,600, and Hovious left the bank.

Hovious later told investigators that he did not have either a gun or an accomplice.

Hovious was arrested on October 25, 2017. On March 6, 2018, Hovious pleaded

guilty in an open plea to bank robbery in violation of 18 U.S.C. § 2113(a).

Prior to sentencing, the United States Probation Office prepared a presentence

report, which correctly calculated his guideline range as 46-57 months in prison

but recommended an upward variance to 96 months. At sentencing, Hovious

argued for a downward variance to 30 months, presented evidence of childhood

abuse and an expert witness to the effects of long periods in solitary confinement,

and objected to the recommendation of an upward variance. He did not object to

any of the probation conditions. The district court sentenced Hovious to 96 months

in prison.

2 Hovious argues his sentence is substantively unreasonable because it varies

upward from the guideline range even though the government and Hovious argued

for a sentence within or below the guideline range, and because the district court

rejected Hovious’s mitigation evidence of his traumatic childhood and periods in

solitary confinement and overemphasized his “non-violent stale prior convictions.”

This court reviews the substantive reasonableness of a sentence for abuse of

discretion. United States v. Grant, 727 F.3d 928, 933 (9th Cir. 2013) (citing United

States v. Blinkinsop, 606 F.3d. 1110, 1116 (9th Cir. 2010)). The court considers the

“totality of the circumstances,” and recognizes “the sentencing judge is in a

superior position to find facts and judge their import under § 3553(a) in the

individual case.” Id. (quoting Blinkinsop, 606 F.3d at 1116). The district court

abused its discretion only if the sentence imposed was “(1) illogical, (2)

implausible, or (3) without support in inferences that may be drawn from the facts

in the record.” Id. (quoting United States v. Maier, 646 F.3d 1148, 1156 (9th Cir.

2011) (quoting United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc)).

Hovious’s sentence of 96 months is not substantively unreasonable merely

because it varies above the guidelines and adopts the recommendation in the

presentence report rather than the recommendations of the parties. “A defendant

has no right to a Guidelines sentence.” United States v. Hilgers, 560 F.3d 944, 947

3 (9th Cir. 2009) (citing United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)

(en banc)). “[A]n appeals court may not presume that an out-of-Guidelines

sentence is unreasonable.” Id. (citing Carty, 520 F.3d at 994).

Hovious argues the district court dismissed or disregarded his mitigation

evidence and expert witness to focus on his older convictions. The transcript shows

the district court acknowledged Hovious’s sentencing memorandum, the

presentence report-which the district court adopted, and heard from Hovious’s

expert witness, counsel’s argument, character witness, and from Hovious. Further,

the district court discussed the information received, and explained the weight it

gave the information and reasons for agreement or disagreement with inferences

and conclusions to be drawn from the information before it.

The district court did not dismiss the expert witness, but stated it considered

his testimony and explained that it gave his testimony less weight because the

doctor had not either examined Hovious or the record of why Hovious had been

placed in solitary confinement nine times in eight years. The district court did not

4 focus only on Hovious’s prior, older convictions,1 but considered the § 3553(a)

factors, including Hovious’s personal history and characteristics, the need for

deterrence and to protect the public, and to promote respect for the law. The district

court discussed extensively Hovious’s background, the offense, and the reasons for

the sentence imposed. The district court noted Hovious’s lengthy criminal history-

mostly predating his time in solitary confinement, that he had evolved from non-

violent offenses to threatening the bank teller that he had a gun, and that he had

committed this last offense after repeated incarcerations, shortly after his release,

on probation, and while he had a job, a vehicle, and a place to live. The district

court noted Hovious received little incarceration time for offenses earlier in life

and had not “learned anything from his convictions, arrests, or sentences[,] or

probations . . . up to that period of time.” Further the district court recommended

that Nevada authorities consider making any sentence Nevada may impose when

revoking Hovious’s parole concurrent with the federal sentence because federal

1 Hovious had 16 prior convictions from 1998 to 2006 for second degree burglary, driving under the influence and open container/ drinking alcohol in a vehicle, theft, under the influence of a controlled substance, attempt to obtain money under false pretenses, petty theft with priors, escape from jail while charged with a felony, petty theft with prior jail, grand theft of personal property, under the influence of a controlled substance, under the influence of controlled substances and parole violations, second degree burglary, defrauding an innkeeper, and two counts of burglary. 5 prisons have a greater ability to “treat someone like Mr. Hovious” than state

systems.

A variance of 39 months over the top of the guidelines range of 57 months is

a large variance. Hilgers, 560 F.3d at 948. A major departure requires “a more

significant justification than a minor one.” Gall v. United States, 552 U.S. 38, 50

(2007). Given the district court’s review of all the factors, including the fact that

Hovious’s criminal history was underrepresented in the guideline’s calculation, the

court cannot say that a sentence 39 months over the guidelines was unreasonable.

Hilgers, 560 F.3d at 948 (affirming a district court sentence for mortgage fraud “3

years longer than the top of the Guidelines range” of 18 months where, among

other factors, the guidelines inadequately reflected the potential loss to victims).

The district court sufficiently supported its conclusion that an above guidelines

sentence was necessary with analysis of Hovious’s past criminality, lack of

response to prior sentences, personal history, and the nature and circumstances of

the crime. Id. (determining the district court supported its above guidelines

sentence with findings as to the defendant’s “past criminality, his lack of response

to prior sentences, his personal characteristics and his lack of remorse”). Hovious’s

sentence of 96 months in prison is affirmed.

6 Hovious also appeals imposition of Special Condition number 1, which

permits warrantless searches of Hovious, his residence, and property, by the

probation officer or an authorized person under the probation officer’s supervision.

Hovious did not object to this special condition in the district court, so the court’s

review is limited to plain error. Blinkinsop, 606 F.3d at 1118. “Plain error is (1)

error, (2) that is plain and (3) affects ‘substantial rights,’” and “(4) seriously affects

the fairness, integrity or public reputation of judicial proceedings.” United States v.

Barsumyan, 517 F.3d 1154, 1160 (9th Cir. 2008) (quoting United States v. Olano,

507 U.S. 725, 732–34 (1993)); see also Blinkinsop, 606 F.3d at 1114 n.2.

Hovious argues the district court erred by failing to make an individualized

assessment on the record with record evidence that Special Condition number 1 is

necessary to further the statutory goals of supervision. Hovious argues this

condition affects his substantial rights by “strip[ping] him of all privacy and liberty

interests.”

The district court did not plainly err in imposing this special condition. The

district court was not required to make an individualized assessment, and Betts

does not hold that it is required. United States v. Betts, 511 F.3d 872, 876 (9th Cir.

2007). Rather Betts upheld a warrantless search condition of supervised release

under a more stringent abuse of discretion standard as protecting the public and

7 furthering the goals of post release supervision. Id. Further, this warrantless search

condition does not affect a substantial right as did the condition in the case

Hovious cites, United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2007), which

prohibited a parent from contacting his minor child, id. at 1096–97. See United

States v. Cervantes, 859 F.3d 1175, 1184 (9th Cir. 2017) (upholding a warrantless

search condition of supervised release where defendant had a long criminal history

and prior violations of supervision).

The parties agree that Special Condition number 9, an employment

restriction that Hovious not engage in work that would require him to handle

money, is not necessary to protect the public and should be vacated. This case is

remanded for elimination of Special Condition number 9.

AFFIRMED IN PART AND REMANDED IN PART.

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