                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 08 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10299

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00017-1

  v.
                                                 MEMORANDUM *
BIHNO M. TANAKA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Guam
            Frances Tydingco-Gatewood, Chief District Judge, Presiding

                        Argued and Submitted June 17, 2010
                                Honolulu, Hawaii

Before: B. FLETCHER, PREGERSON, and CLIFTON, Circuit Judges.

       Bihno M. Tanaka pled guilty to aiding and assisting in the filing of false and

fraudulent federal income tax returns in violation of 26 U.S.C. § 7206(2). He

appeals his 15-month sentence, arguing that the district court committed several

significant procedural errors in sentencing and that the sentence was procedurally



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and substantively unreasonable. He also argues that the district court erred in

imposing two overbroad conditions of supervised release. As the parties are

familiar with the facts, procedural history, and arguments, we will not recount

them here. We affirm.

      The district court did not fail to adequately explain its sentence, treat the

Sentencing Guidelines as presumptively reasonable, fail to properly weigh relevant

statutory factors, or base its sentence on an erroneous fact. A district court need not

explain its reasons in detail where context and the record make clear what

reasoning underlies the judge's conclusion, as in Tanaka’s case. United States v.

Treadwell, 593 F.3d 990, 1010 (9th Cir. 2010).

      The Guidelines are the “starting point and the initial benchmark” in

sentencing proceedings and are to be kept in mind by the court throughout the

process. United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008). The record does

not support a conclusion that the district court exceedingly relied on the Guidelines

simply because Tanaka’s sentence is only slightly below the Guidelines range. The

district court need not tick off each of the 18 U.S.C. § 3553(a) factors to show that

it has considered them. Id. at 992. Nor need the district court articulate in a vacuum

how each § 3553(a) factor influenced its determination of an appropriate sentence.

Id. The record shows that the district court considered the relevant § 3553(a)


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factors – for example, that Tanaka had a large family that depended on him, that he

had many letters of support from the community, and that he had provided

substantial assistance to the IRS – but ultimately concluded that the Tanaka’s crime

was serious enough to warrant a sentence of 15 months imprisonment. Finally, the

district court’s brief and mistaken comment that Tanaka participated in an

“international scheme” did not appear to provide the basis for the ultimate sentence

imposed, and thus did not amount to a procedural error. Id. at 993 (“It would be

procedural error for a district court . . . to choose a sentence based on clearly

erroneous facts.” (emphasis added)). Even if it did, this isolated erroneous

comment was harmless and thus does not require a remand.

      In determining substantive reasonableness, we consider the totality of the

circumstances, including degree of variance for a sentence imposed outside the

Guidelines range. Id. at 993. For a non-Guidelines sentence, we give due deference

to the district court's decision that the §3553(a) factors justify the extent of the

variance. Id.

      Tanaka's sentence reflects the district court's consideration of the §3553(a)

factors. It was not an abuse of discretion for the district court to decide that

Tanaka's case was not so atypical as to require a larger variance from the




                                            3
recommended Guidelines range. The district court's already below-Guidelines

sentencing decision was not unreasonable.

      A district court enjoys wide discretion to impose conditions of supervised

release as long as the conditions imposed are “reasonably related to the goal of

deterrence, protection of the public, or the rehabilitation of the offender.” United

States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003). The two challenged

conditions of supervised release are not vague, nor are they particularly

demanding, even if the requirements are read in their most severe interpretations.

Furthermore, supervised release provisions are generally read to exclude

inadvertent violations. United States v. Soltero, 510 F.3d 858, 867 (9th Cir. 2007).

There is not a wide range of reasonable interpretations for the conditions in

question. The conditions are no more vague than the other unchallenged standard

conditions imposed, and people of common intelligence who interpret the terms in

accordance with their common meaning should not fail to understand what is

required.

      AFFIRMED.




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