                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 19 2010

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

UNITED STATES OF AMERICA,                        No. 09-30268

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00041-RSL-1

  v.
                                                 MEMORANDUM*
RICHARD ALLEN FABEL,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert S. Lasnik, Chief District Judge, Presiding

                        Argued and Submitted April 6, 2010
                               Seattle, Washington

Before: HAWKINS, LUCERO** and N.R. SMITH, Circuit Judges.

       Richard Fabel appeals the sentence imposed by the district court on the

grounds that the court (1) committed significant procedural error by considering




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit
Court of Appeals, sitting by designation.
improper evidence during its 18 U.S.C. § 3553(a) analysis; and (2) imposed a

substantively unreasonable sentence. We affirm.

      Fabel was convicted under the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), for crimes in which he engaged, while he was the

president and spokesman of the “Washington Nomads,” a chapter of the Hells

Angels Motorcycle Club. The jury found that Fabel conducted the affairs of the

Nomads through a “pattern” of racketeering activity—meaning Fabel committed at

least two related predicate “racketeering acts,” in violation of 18 U.S.C. § 1962(c).

      1. The district court did not rely on an improper factor during its 18 U.S.C.

§ 3553(a) analysis, and thus did not commit significant procedural error. United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The court was

entitled to consider whether Fabel accepted responsibility for his connection with

the criminal activity occurring in the Nomads, because that club was found to be a

criminal organization of which Fabel was a member. See 18 U.S.C. § 3661.

      Fabel contests the court’s consideration of his lack of responsibility on

numerous grounds, each of which fails.

             a. The § 3553(a) analysis acts as a separate guide for determining a

proper sentence. Carty, 520 F.3d at 991–93. As such, the Guidelines’

consideration of Fabel’s lack of acceptance of responsibility does not prohibit the


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court from further considering such conduct, nor does it bind the sentencing court

to the approach outlined in the Guidelines.

              b. At sentencing, the court may consider conduct for which Fabel was

not convicted. This does not violate Fabel’s constitutional right (1) to a trial by

jury, see United States v. Watts, 519 U.S. 148, 152 (1997), or (2) to remain silent,

see United States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990).

              c. The Guidelines do not violate the statutory mandate set out for the

Sentencing Commission in 28 U.S.C. § 994 by allowing the court to consider

conduct of which Fabel was acquitted. United States v. Wong, 2 F.3d 927, 929 (9th

Cir. 1993).

              d. The court’s enhancement of Fabel’s sentence for failure to accept

responsibility, on the grounds that the Guidelines did not sufficiently consider such

conduct, did not subject Fabel to double-punishment. Fabel’s challenge to the

length of time imposed by the court is more properly analyzed as an appeal to the

substantive reasonableness of the sentence imposed.

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

when it sentenced Fabel to a 90-month term of imprisonment instead of a term

within the Guidelines range (57–71 months). We do not presume that a sentence

outside of the Guidelines range is unreasonable. Carty, 520 F.3d at 993. “For a


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non-Guidelines sentence, we are to ‘give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’”

Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). However, a term

outside the Guidelines range will likely need a more detailed explanation justifying

the more lenient or harsh sentence. Carty, 520 F.3d at 992. We review the

substantive reasonableness of the court’s sentence for abuse of discretion, looking

to the totality of the circumstances. United States v. Autery, 555 F.3d 864, 871 (9th

Cir. 2009)

      The record before us demonstrates the court’s careful consideration of the

Guidelines range, the mitigating evidence (both pre- and post-conviction), the

aggravating evidence, and all of the original and resentencing materials. Based

upon all this, the court offered a compelling justification for finding a harsher

sentence appropriate. The court found that the Guidelines range did not adequately

account for the seriousness of Fabel’s criminal activity. Particularly, the court

mentioned Fabel’s position of power and control over a criminal organization

comprised of violent individuals who preyed upon people the group saw as

compromised. We cannot find that the district court abused its discretion in

imposing the term of imprisonment.

      AFFIRMED.


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