UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
February 16, 2011
UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
ROSS CHARLES HACK, DEFENDANT - APPELLANT.
D.C. No. 2:08-cr-00344-DDP-1 Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Submitted February 14, 2011*fn2
Before: KLEINFELD, LUCERO , and GRABER, Circuit Judges.*fn3
The district court did not commit procedural error in imposing its sentence; it calculated the appropriate Guidelines range, explained why it decided to deviate from the Guidelines range, and gave the parties an opportunity to discuss the proposed sentence before finalizing it. Gall v. United States, 552 U.S. 38, 51 (2007).
The district court did not abuse its discretion in assessing a 36-month imprisonment term. The district court looked at all of the § 3553(a) factors, but put the most weight on the first factor, the nature and circumstances of the offense. The district judge found by clear and convincing evidence that Hack's motive for committing the passport fraud was to evade the police's murder investigation. This finding is supported by substantial evidence in the record. Thus, the district court did not abuse its discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (per curiam).
Nor did the district court violate Federal Rule of Criminal Procedure 32 or due process. Hack waived his objections to the Presentence Investigation Report by not filing his objections to them within 14 days, Fed. R. Crim. P. 32(f)(1), and he failed to provide countervailing evidence to create any specific disputes regarding the accuracy of the evidence. United States v. Stoterau, 524 F.3d 988, 1011--12 (9th Cir. 2008). For the same reasons, it was not an abuse of discretion by the district court to choose not to hold evidentiary hearings; Hack was given the opportunity to rebut the Presentence Investigation Report both in writing and at sentencing, so no evidentiary hearing was required. United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001).
The sentence was supported by reliable evidence, and, therefore, did not violate Hack's due process rights. United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993); see also United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995). Finally, the terms and conditions of Hack's supervised release are not vague or overbroad, do not deprive him of more liberty than necessary, and are directly grounded in the goals of § 3553(a). See United States v. Vega, 545 F.3d 743, 749 (9th Cir. 2008); United States v. Soltero, 510 F.3d 858, 866--67 (9th Cir. 2007) (per curiam); United States v. Ross, 476 F.3d 719, 721--22 (9th Cir. 2007).