NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 15 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30100

Plaintiff-Appellee, D.C. No. 1:19-cr-00158-DCN-3 v.

HARLAN HALE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Submitted March 11, 2022** Seattle, Washington

Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.

Harlan Hale appeals his sentence following his guilty plea to conspiracy to

participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d) (“Count

1”) and attempted murder and assault with a dangerous weapon in aid of

racketeering in violation of 18 U.S.C. §§ 1959(a)(3), (a)(5), and 18 U.S.C. § 2

* 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). (“Count 2”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Hale argues that the district court improperly calculated his sentencing

range under the United States Sentencing Guidelines. We disagree. The district

court properly applied Section 3D1.1, which governs the total offense level

calculation when a defendant is convicted of multiple counts. Under Section

3D1.1, the district court correctly began with the “highest offense level” between

the counts of conviction. U.S.S.G. §§ 3D1.1, 3D1.3, 3D1.4. In Hale’s case, that

was Count 2, which had an adjusted offense level of 43, compared to Count 1’s

adjusted offense level of 36. The district court then properly adjusted the resulting

offense level, which for Hale included one unit for Count 2 and one-half unit for

Count 1, resulting in a one-level increase. See U.S.S.G. § 3D1.4. The district

court reduced the offense level by three to give Hale credit for acceptance of

responsibility under Section 3E1.1, resulting in a total adjusted offense level of 41.

Applying Hale’s criminal history category of VI, which he does not dispute, the

total Guidelines sentence range was 360 months to life imprisonment. See

U.S.S.G. § 5A.

Because Hale’s two sentences could run concurrently, the district court then

determined the total punishment to be imposed on both counts to the extent

permitted by law. U.S.S.G. § 5G1.2(b). Considering the total Guidelines range as

well as each count’s statutory maximum—life imprisonment for Count 1 and 20

2 years for Count 2—the district court imposed a life sentence for Count 1 and a 20-

year sentence for Count 2 to run concurrently. U.S.S.G. § 5G1.2(c).

Hale cites no support for his argument that the district court should have

begun its calculation with the lower offense level from Count 1 because it carries a

higher statutory maximum than Count 2. See U.S.S.G. § 3D1.4. “When

sentencing on multiple counts of conviction, the total sentence imposed may be

greater than the statutory maximum for a particular count.” United States v.

Temkin, 797 F.3d 682, 695 n.5 (9th Cir. 2015). As we have clarified, “[t]he

[G]uidelines provide a separate and elaborate scheme for sentencing defendants

guilty of multiple counts,” recognizing that “any given offense, when committed

along with other crimes, is more serious than the same offense committed alone.”

United States v. Moreno-Hernandez, 48 F.3d 1112, 1117 (9th Cir. 1995). It was

therefore proper for the district court to consider both counts when calculating

Hale’s sentence.

2. Hale also argues that the district court failed to adequately explain his

sentence. See Gall v. United States, 552 U.S. 38, 49-51 (2007) (listing “failing to

adequately explain the chosen sentence” as a procedural error for review). To the

contrary, the district court considered the statutory maximums and individual

Guidelines ranges for Hale’s two offenses, heard arguments from both sides,

explained its calculation of the combined offense level and Guidelines range,

3 analyzed the factors under 18 U.S.C. § 3553(a) that justified imposing the

maximum sentence permitted by law, and explained its reasons for Hale’s

sentence. See id. “At bottom, the sentencing judge need only ‘set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis’” for the sentence imposed. Chavez-Meza v. United States, 138 S.

Ct. 1959, 1964 (2018) (internal citation omitted). The district court more than met

that requirement here.

AFFIRMED.

4