                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 10 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50017

              Plaintiff-Appellee,                D.C. No.
                                                 2:12-cr-01014-ODW-1
 v.

JOHN WINSTON BOONE, AKA                          MEMORANDUM*
American Blog, Inc., AKA Great Ideas,
LLC, AKA John Greene, AKA HS
Consortium, Inc., AKA John King, AKA
John Smith, AKA Justin Winabali,

              Defendant-Appellant.


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

                     Argued and Submitted December 5, 2016
                              Pasadena, California

Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      John Winston Boone pleaded guilty to and was convicted of two counts of

wire fraud, in violation of 18 U.S.C. § 1343. He appeals the 120-month sentence

imposed by the district court. We affirm.

      First, Boone’s argument that the district court improperly participated in

sentencing negotiations by pressuring Boone to “nullify a related state civil court

decision to avoid a harsher sentence” fails. A district court can consider a

defendant’s recalcitrant behavior at sentencing. Warning a defendant of the

consequences of his behavior during sentencing is not a quid pro quo exchange as

in United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir. 2011), and is not

improper.

      Second, Boone argues that the government breached the plea agreement by

“us[ing] [Boone’s] arguments [about the value he allegedly gave to victims] to

draw adverse inferences about his personal character.” The plea agreement did not

prohibit the government from challenging Boone’s arguments regarding loss and

restitution, and expressly allowed the government “to argue for a sentence outside

the sentencing range established by the Sentencing Guidelines.”

      Third, Boone’s argument that the district court violated his right to

allocution fails. The district court invited Boone to allocute three times. He was




                                            2
not interrupted, and the court did not ask any questions during the second and third

allocutions. In total, these allocutions cover almost 10 pages of transcript.

      Fourth, Boone’s argument that his sentence should be reversed based on the

district court’s “arbitrary and capricious” sentencing procedures is meritless.

Boone asserts that the district court “moved the target” by first instructing Boone

to file a satisfaction of judgment, then instructing him to vacate the judgment in the

related state court action. The district court did not “move the target,” but rather

changed its tentative viewpoint in response to the government’s argument that “a

satisfaction of judgment . . . is not justice because that would say [V.A.] owed the

money and she paid it.” Indeed, regardless of the court’s disagreement with

defense counsel’s decision to prepare a satisfaction of judgment and declaration

asserting that Boone will not attempt to collect on the judgment, the court

explained that it would no longer consider a statutory maximum sentence.

      Moreover, Boone argues that two1 “clearly erroneous facts” were the basis

of the district court’s sentence. Boone first argues that the district court

erroneously accused him of failing to take full responsibility, which is allegedly

inconsistent with giving Boone the three-level reduction for acceptance of


      1
        In his opening brief, Boone also argues that the district court based its
sentence on a third “clearly erroneous fact”: that Boone’s community service was
tainted by fraud. However, he withdrew that argument in his reply brief.
                                            3
responsibility under the U.S. Sentencing Guidelines § 3E1.1(a). The alleged

inconsistent statements consist of the district court’s comments on Boone’s

callousness, lack of remorse, and lack of understanding of the seriousness of his

crime. These statements were not inconsistent with awarding Boone the

three-level reduction for acceptance of responsibility under § 3E1.1(a) for

admitting the conduct comprising the offense of conviction and not putting the

government to its burden of proof at trial.

      Boone also argues that the district court was incorrect in stating that one of

the victims sought the return of his investment because he needed life-saving

medical treatment. Although it is true that the victim needed money to pay

medical bills, there is no evidence that the medical bills were for “life-saving

medical treatment.” Boone does not demonstrate that the misinformation

constituted the basis for his sentence. See United States v. McGowan, 668 F.3d

601, 606 (9th Cir. 2012). Any error was harmless because the statement was not

material to the district court’s decision.

      Further, the district court’s explanation of its sentence was sufficient. The

court held four sentencing hearings. When imposing the sentence, the court gave a

statement of reasons that discussed the Sentencing Guidelines, the § 3553(a)

factors, specific facts of the crime, and Boone’s background and criminal history.


                                              4
This explanation was adequate to permit meaningful appellate review. See Gall v.

United States, 552 U.S. 38, 50 (2007).

      Fifth, Boone’s argument that his sentence is substantively unreasonable is

meritless. The district appropriately considered “the applicable Guidelines range as

‘the starting point and the initial benchmark.’” United States v. Henderson, 649

F.3d 955, 964 (9th Cir. 2011) (quoting Gall, 552 U.S. at 49), and compelling

aggravating factors justified the sentence. Moreover, while Boone may have

satisfied the technical requirements in the Sentencing Guidelines for acceptance of

responsibility, his statements to the district court indicated that he had no

understanding of the harm he had inflicted on the victims. Finally, the mitigating

factors identified by Boone did not deprive the court of its discretion to impose a

120-month sentence. See United States v. Barsumyan, 517 F.3d 1154, 1159 n.6

(9th Cir. 2008) (noting that mitigating factors are a part of “a holistic § 3553(a)

review”). The mitigating factors were properly considered by the district court,

which gave them little weight in comparison to the aggravating factors.

      Finally, Boone’s request for judicial notice is denied. See Fed. R. Evid.

201(b)(2).

      AFFIRMED.




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