NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50020

Plaintiff-Appellee, D.C. No. 2:18-cr-00283-SJO-2 v.

SEAN LAMONT WYATT, AKA Bauer MEMORANDUM* Herbert, AKA Tye Nelson, AKA Jonny Ward, AKA Robert Ward,

Defendant-Appellant.

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

UNITED STATES OF AMERICA, No. 19-50066

Plaintiff-Appellee, D.C. No. 2:08-cr-01307-PA-1

v.

SEAN LAMONT WYATT, AKA Bauer Herbert, AKA Tye Nelson, AKA Jonny Ward, AKA Robert Ward,

Defendant-Appellant.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. for the Central District of California Percy Anderson, District Judge, Presiding

Submitted February 6, 2020** Pasadena, California

Before: BOGGS,*** IKUTA, and CHRISTEN, Circuit Judges.

Sean Lamont Wyatt appeals his conviction and sentence on four counts related

to identity theft and possession of unauthorized access devices.1 Wyatt contends

that the district court erred when it refused to admit certain hearsay statements made

by his co-conspirator; that he was denied his right to effective counsel; and that his

48-month sentence was unreasonable. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. At trial, the government introduced evidence proving that Wyatt had

sent his co-conspirator, Chrystalyn House, several text messages containing the

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 18 U.S.C. § 1029(e) defines an “access device” as “any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).” An “unauthorized access device” is “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” Ibid.

2 personal identifying information (PII) of at least six victims. As part of his defense,

Wyatt attempted to introduce statements that House had made to an investigator for

his public defender, in which House stated that she had used Wyatt’s phone to send

herself the PII without Wyatt’s knowledge. The district court refused to admit the

statements, holding that they were hearsay that did not fall under any exception.

We review a district court’s construction of a hearsay rule de novo but review

its exclusion of evidence under that rule for abuse of discretion. United States v.

Mitchell, 502 F.3d 931, 964 (9th Cir. 2007). Wyatt argues that House’s statements

fall under the exception for statements against interest. Fed. R. Evid. 804(b)(3). To

qualify for the exception, a proponent must establish that: (1) the statement tended

to subject the declarant to criminal liability such that a reasonable person in the

declarant’s position would not have made the statement unless he believed it to be

true; (2) the declarant is unavailable as a witness; and (3) there exist corroborating

circumstances that clearly indicate the statement’s trustworthiness. Ibid.; see also

United States v. Paguio, 114 F.3d 928, 932 (9th Cir. 1997).

Wyatt failed to show that House was unavailable. An absence at trial must

generally be coupled with an inability to compel attendance or an express claim of

privilege. Fed. R. Evid. 804(a). Yet neither the government nor Wyatt’s counsel

subpoenaed House to compel her to testify. Wyatt argues that had House been

subpoenaed, she would have invoked her Fifth Amendment privilege against self-

3 incrimination. But an invocation of privilege must be formally made before a judge

and, absent this, a court cannot speculate as to whether that express claim would

have been made. See, e.g., United States v. Oropeza, 564 F.2d 316, 325 n.8 (9th Cir.

1977). House was never compelled to testify, and so we do not know whether she

would have invoked the privilege. Therefore, she was not unavailable for the

purposes of the hearsay exception.

2. Wyatt also contends that his trial counsel was ineffective because he

failed to subpoena House. We decline to consider Wyatt’s premature ineffective-

assistance-of counsel claim. We generally do not review challenges to the

effectiveness of defense counsel on direct appeal. See, e.g., United States v.

Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011). There is no reason to deviate

from this rule, as the record is not yet fully developed. The record lacks any

information that can be used to explain any of the decisions made by Wyatt’s

counsel, and thus the claim is better reserved for collateral review.

3. Finally, Wyatt contends that his sentence was procedurally

unreasonable. We review the district court’s interpretation of the Sentencing

Guidelines de novo, its application of the Guidelines to the facts for abuse of

discretion, and its factual findings for clear error. United States v. Treadwell, 593

F.3d 990, 999 (9th Cir. 2010). The court accepted the Presentence Report’s

determination that Wyatt’s loss amount for the fraud committed was $35,500. This

4 was based on the 71 unauthorized access devices (67 Social Security numbers and 4

credit cards) that were recovered from House’s apartment. The Sentencing

Guidelines note that when a fraud is the result of “jointly undertaken criminal

activity,” then the loss amount attributable to any individual defendant is based on

all acts and omissions that were “within the scope” and “in furtherance” of that

activity, and “reasonably foreseeable in connection with that criminal activity.”

USSG § 1B1.3(a)(1)(B).

Wyatt contends that most of the items recovered from House’s apartment

cannot be attributed to him. However, Wyatt could have reasonably foreseen that

House might have possessed more than just the PII that he had shared with her. The

text messages between Wyatt and House show that while it was mostly Wyatt

sending to House the PII of victims, House would also occasionally send Wyatt PII

for potential use. At one point, Wyatt also asked House to buy him jeans, and the

conversation that followed suggests that he understood that House might purchase

them fraudulently. The district court therefore correctly found—by a preponderance

of the evidence—that the loss amount could be attributed to Wyatt. It did not abuse

its discretion in sentencing Wyatt to a within-guidelines term of imprisonment based

on this information.

AFFIRMED.

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