                                                                              FILED
                    UNITED STATES COURT OF APPEALS                              JUL 18 2011

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                           U.S . CO U RT OF AP PE A LS




UNITED STATES OF AMERICA,                        No. 09-50651

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00344-DDP-1
                                                 Central District of California,
  v.                                             Los Angeles

ROSS CHARLES HACK,
                                                 ORDER
              Defendant - Appellant.



Before: KLEINFELD, LUCERO,* and GRABER, Circuit Judges.




       The petition for rehearing is GRANTED in part and DENIED in part. The

memorandum disposition filed on February 16, 2011 is amended. The amended

memorandum disposition will be filed concurrently with this order. Subsequent

petitions for rehearing and petitions for rehearing en banc may be filed.




       *
              The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
                                                                           FILED
                           NOT FOR PUBLICATION                               JUL 18 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50651

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00344-DDP-1

  v.                                             AMENDED
                                                 MEMORANDUM *
ROSS CHARLES HACK,

              Defendant - Appellant.



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

                           Submitted February 14, 2011**
                               Pasadena, California

Before: KLEINFELD, LUCERO ***, and GRABER, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
      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 sentence imposed was substantively reasonable, and the district court

did not abuse its discretion in assessing a 36-month imprisonment term. The

district court looµed at all of the y 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 Hacµ's motive for committing the passport

fraud was to evade the police 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. Hacµ waived his objections to the Presentence Investigation Report

by not filing timely and specific objections within 14 days, Fed. R. Crim. P.

32(f)(1), and he failed to provide countervailing evidence to create any specific


                                           2
disputes regarding the accuracy of the evidence. United States v. Stoterau, 524

F.3d 988, 1011-12 (9th Cir. 2008). For the same reason, it was not an abuse of

discretion by the district court to choose not to hold an evidentiary hearing; Hacµ

was given the opportunity to rebut the Presentence Investigation Report both in

writing and at sentencing, so no separate 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 Hacµ's due process rights. United States v. Petty, 982 F.2d 1365, 1369 (9th

Cir. 1993); see also United States v. Hucµins, 53 F.3d 276, 279 (9th Cir. 1995).




      In light of United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010),

the condition of supervised release prohibiting Hacµ from associating with

'persons associated with the Hammersµin, Christian Identity Sµins, or any other

sµinhead gang, with the exception of his family members' was error. As in

Johnson, we remand this portion of the supervised release conditions so that the

district court may 'consider whether substitute language would be appropriate.'

Id.




                                          3
      The other terms and conditions of Hacµ'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 y 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).


      AFFIRMED in part, and REMANDED in part.




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