                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 27 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    16-10071

                  Plaintiff-Appellee,            D.C. No.
                                                 3:11-cr-00099-LRH-WGC-1
   v.

 MARCILIN ANNE BENVIN,                           MEMORANDUM*

                  Defendant-Appellant.

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

                      Argued and Submitted January 13, 2017
                            San Francisco, California

Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.

        Defendant-Appellant Marcilin Benvin (Benvin) appeals from the sentence in

the judgment imposed by the district court following her post-indictment guilty

plea to one count of embezzlement and theft from an employee benefit plan in

violation of 18 U.S.C. § 664. Benvin’s sentence – 60 months in prison – was three

months above the high end of the applicable advisory guideline range and 14
        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
months above the low end of the guideline range sentence recommended by the

plea agreement. On appeal, Benvin argues that the district court committed

significant procedural error by considering facts in the presentence investigation

report (PSR) as undisputed in spite of Benvin’s invocation of her Fifth Amendment

right to remain silent with respect to those facts, and also imposed a substantively

unreasonable sentence. Benvin additionally argues that the Government breached

the terms of the plea agreement by failing to recommend a low-end guideline

sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

       1. The district court did not commit significant procedural error by adopting

the PSR’s description of Benvin’s offense conduct as a factual finding and basing

its sentencing decision on that fact. A district court commits procedural error in

sentencing when, inter alia, it “choose[s] a sentence based on clearly erroneous

facts.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

However, when a defendant does not object to the factual accuracy of a PSR, “the

district court [is] entitled to treat the factual assertions therein as established.”

United States v. Hilgers, 560 F.3d 944, 948 n.4 (9th Cir. 2009) (citing Fed. R.

Crim. P. 32(i)(3)(A)). Benvin failed to make such an objection, and the district

court therefore properly considered the PSR’s description of Benvin’s offense

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conduct as established fact. Benvin’s invocation of her Fifth Amendment right to

remain silent with respect to the PSR’s description of her offense conduct does not

excuse her failure to challenge the PSR’s factual accuracy. See United States v.

Romero-Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000) (rejecting argument that

a district court’s reliance on an uncontroverted PSR constitutes an adverse

inference from a refusal to testify at sentencing in violation of the Fifth

Amendment).

      2. The district court did not impose a substantively unreasonable sentence.

“The touchstone of ‘reasonableness’ is whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C.

§ 3553(a).” United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011)

(internal quotation marks omitted). We review the substantive reasonableness of a

sentence for abuse of discretion, and “may not reverse just because we think a

different sentence is appropriate.” Carty, 520 F.3d at 993. Consistent with

§§ 3553(a)(1) and 3553(a)(2)(A), the district court discussed extensively the

magnitude of Benvin’s fraudulent activity and the resulting losses for her investors

and concluded that the “overwhelming” factors in determining Benvin’s sentence

were “the seriousness of the crime and the need to promote respect for the law and,

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of course, to provide just punishment.” Although the district court did not

specifically address Benvin’s personal history and characteristics, “[a] district

court is not required to refer to each factor listed in § 3553(a).” United States v.

Mix, 457 F.3d 906, 912 (9th Cir. 2006). Because Benvin argued that her personal

history and characteristics weighed in favor of a low end guidelines sentence both

in her sentencing memorandum and during the sentencing hearing, we can infer

that the district court found this factor to be outweighed by the other explicitly

addressed § 3553(a) factors.

      Furthermore, a district court is “not prohibited from considering the extent to

which the Guidelines d[o] not sufficiently account for the nature and circumstances

of [an] offense, including the amount of the loss, the number of victims, or the

harm to the victims, even though the Guidelines account for these factors either

implicitly or explicitly, to some extent.” United States v. Christensen, 732 F.3d

1094, 1101 (9th Cir. 2013) (emphasis omitted). Although the plea agreement’s

sentencing guideline stipulation may have accounted for the full extent of Benvin’s

offense conduct, the district court did not engage in impermissible double counting

in concluding that the “magnitude” of Benvin’s conduct and her victims’ losses

nevertheless supported the imposition of an upwards variance.

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      3. The Government satisfied its obligation under the plea agreement to

recommend a low-end sentence. When the government agrees to recommend a

particular sentence, “[t]he bargain that the defendant agreed to [is] not a promise

by the government to recommend, but the actual fact of recommendation.” United

States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994). However, the government can

make the promised recommendation through “negative implication.” United States

v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999) (holding sufficient the statement “I

am bound under the plea agreement not to recommend more than the low end of

the sentencing range, and I will abide by that plea agreement”). Because Benvin

did not raise this issue at sentencing, we review for plain error. United States v.

Hernandez-Castro, 814 F.3d 1044, 1045–46 (9th Cir. 2016).

      At sentencing, the Government twice indicated that it had agreed to

recommend a low-end sentence pursuant to the plea agreement, and made no

recommendation to the contrary. The Government therefore made the promised

recommendation by negative implication. Benvin cannot demonstrate error, much

less error that is plain or obvious.

      But even assuming that the Government’s two statements were insufficient

to recommend a low-end sentence, Benvin cannot demonstrate that this error

                                          5
“affected the outcome of the district court proceedings.” Puckett v. United States,

556 U.S. 129, 135 (2009) (citation omitted). The district court explained that the

60-month statutory maximum sentence was justified by the “magnitude of the

criminality, the magnitude of the victim’s losses in this case, the magnitude of the

nature of the victims and the types of losses.” The district court did not rely on any

statements made by the Government to make this determination; rather, the district

court independently assessed the PSR, victim testimony, and victim impact letters.

In fact, the district court expressed concern that both Benvin and the Government

had “gloss[ed] over what the factual history is here” with respect to the magnitude

of Benvin’s fraudulent scheme. It is therefore unlikely that the district court would

have sentenced Benvin to a low-end guidelines sentence even if the request had

been presented by a “united front.” United States v. Quach, 302 F.3d 1096, 1101

(9th Cir. 2002).

      AFFIRMED.




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