                                                                              FILED
                           NOT FOR PUBLICATION                                APR 24 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10608

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00040-KJD-RJJ-
                                                 1
  v.

MARIO WEICKS,                                    MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                            Submitted April 20, 2012**
                             San Francisco, California

Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.

       Mario Weicks appeals the sentence imposed by the district court. We

affirm. Because the parties are familiar with the history of this case, we need not

recount it here.


        *
             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).
                                          I

      The district court did not err by separating the four counts of sexual

misconduct, arising from Appellant’s two trips to Las Vegas with the victim, into

two groups for sentencing purposes. Counts can involve substantially the same

harm when they “involve the same victim and two or more acts or transactions

connected by a common criminal objective or constituting part of a common

scheme or plan.” U.S.S.G. § 3D1.2(b). The commentary to § 3D1.2(b) states that

multiple counts may form “a single course of conduct with a single criminal

objective and represent essentially one composite harm to the same victim . . . even

if they constitute legally distinct offenses occurring at different times.” U.S.S.G. §

3D1.2 cmt. n.4. In this case, the two trips did not necessarily have “a common

criminal objective” or involve a single “composite harm” to the victim. U.S.S.G. §

3D1.2(b).

      Although both trips resulted in sexual abuse of the same victim, the trips

took place eight days apart and therefore may reasonably be viewed as separate

episodes of criminal conduct. See U.S.S.G. § 3D1.2 cmt. n.4, ex. 5. (“The

defendant is convicted of two counts of rape for raping the same person on

different days. The counts are not grouped together.”); see also United States v.

Sneezer, 983 F.2d 920, 925 (9th Cir. 1992) (per curium) (holding that sexual


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assaults of the same victim “separated by only a few minutes” must be grouped,

but suggesting that the same offenses committed against a single victim held in

captivity over a period of days would not be grouped).

         Weicks also argues that the district court erred by failing to group his felon-

in-possession count with his four sexual misconduct counts. However, he waived

this argument before the district court and is therefore precluded from raising it

before this court. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en

banc).

                                            II

         The district court did not abuse its discretion by refusing to continue

Appellant’s resentencing proceedings to allow him to obtain a psychological

evaluation and compile an updated presentence report. Denial of a requested

continuance constitutes an abuse of discretion “only if denial of the continuance

was arbitrary or unreasonable.” United States v. Wills, 88 F.3d 704, 711 (9th Cir.

1996) (internal quotation marks omitted). The district court judge considered

Weicks’s request for a continuance to gather a psychological evaluation and

updated presentence report, but determined, after hearing testimony from Weicks

as to his psychological condition, that there was enough information in the record

to proceed with sentencing. Weicks did not provide the district court with any


                                            -3-
substantial information suggesting a need for the psychological evaluation or a

revised presentence report. United States v. Bos, 917 F.2d 1178, 1183 (9th Cir.

1990). Given the circumstances, the district court’s decision was not arbitrary or

unreasonable.

                                          III

      The district court’s sentencing was not substantively unreasonable. The

district court’s sentencing decision in this case reflects “an individualized

assessment based on the facts presented.” Gall v. United States, 552 U.S. 38, 50

(2007). Weicks has neither provided any evidence that the district court ignored

the sentencing factors set forth in 18 U.S.C. § 3553(a) nor suggested any other

reason why the sentence is substantively unreasonable.

      AFFIRMED.




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