                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 29 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50338

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00228-ODW-1

  v.
                                                 MEMORANDUM*
ANTHONY PENDLETON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Otis D. Wright, District Judge, Presiding

                    Argued and Submitted November 18, 2011
                              Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior
District Judge.**

       Appellant Anthony Pendleton (Pendleton) appeals his sentence for

conspiracy to defraud the government by filing falsified tax returns. Pendleton

argues that the district court committed procedural error by imposing a sentence at

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for the Central District of Illinois, sitting by designation.
the high end of the Guidelines range because of Pendleton’s purported failure to

admit guilt and by failing to consider that Pendleton had suffered abuse as a child

and had psychological issues. Pendleton also argues that the sentence was

substantively unreasonable in light of the fraud guideline and his low risk of

recidivism.



1.    The district court did not commit procedural error by considering

Pendleton’s failure to admit responsibility to explain why Pendleton was not

entitled to a downward adjustment. See United States v. Rosas, 615 F.3d 1058,

1067 (9th Cir. 2010), as amended.



2.    The district court considered the evidence Pendleton submitted regarding his

childhood abuse and psychiatric condition and sufficiently explained why it

rejected Pendleton’s argument that this evidence mandated a lower sentence. See

United States v. Apodaca, 641 F.3d 1077, 1081 (9th Cir. 2011) (“[N]o lengthy

explanation is necessary if the record makes it clear that the sentencing judge

considered the evidence and arguments.”) (citation omitted).




                                          2
3.     Pendleton did not challenge the fraud guideline before the district court, and

the district court therefore did not commit plain error in sentencing Pendleton

under that guideline. See United States v. Ayala-Nicanor, 659 F.3d 744, 746-47

(9th Cir. 2011). Nor did the district court abuse its discretion. See United States v.

Carper, 659 F.3d 923, 925 (9th Cir. 2011) (explaining that the district court is not

obliged to “consider sua sponte whether it had discretion to make a downward

variance . . .”) (citation omitted).



4.     Nor did the district court impose a substantively unreasonable sentence

because “the district court heard and considered [Pendleton]’s arguments,

contemplated the § 3553(a) factors, and reached an informed conclusion regarding

sentencing. . . .” United States v. Overton, 573 F.3d 679, 700 (9th Cir. 2009), as

amended.

AFFIRMED.




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