                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       FEB 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 17-10193

                 Plaintiff-Appellee,            D.C. No. 1:16-cr-00284-DKW

 v.
                                                MEMORANDUM*
TURK K. CAZIMERO,

                 Defendant-Appellant.

                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

                           Submitted February 13, 2018**

Before:      LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

      Turk K. Cazimero appeals from the district court’s judgment and challenges

the 96-month sentence imposed following his guilty-plea conviction for wire fraud,

in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Cazimero contends that the district court erred and violated his due process

rights by imposing an upward variance on the basis of unsworn victim impact

statements, the perceived leniency of his prior state court sentence, and his

inability to pay restitution. The record reflects that the district court properly based

its variance on the 18 U.S.C. § 3553(a) factors, including Cazimero’s history and

characteristics, and the need to provide just punishment for the offense. The court

did not violate due process by considering unsworn victim impact statements,

which Cazimero has not shown were materially false or unreliable. See United

States v. Christensen, 732 F.3d 1094, 1102, 1106 (9th Cir. 2013) (district court

may consider unsworn victim impact statements at sentencing; due process

violated only when sentence is imposed on the basis of materially false or

unreliable information). Nor did the court engage in impermissible double

counting by varying upwards based on the effect of the crime on the victims. See

id. at 1100-01. Moreover, the court appropriately considered the failure of

Cazimero’s prior sentence to deter him, see 18 U.S.C. § 3553(a)(1), (2)(B), as well

as the impact on the victims of his inability to pay restitution. See United States v.

Rangel, 697 F.3d 795, 804 (9th Cir. 2012) (court’s consideration of inability to pay

restitution not error where “[t]he court’s discussion made clear that its concern

over restitution was based on the impact [defendant’s] crime had on the victims

and was not designed to punish [defendant] for his inability to pay”). Finally, in

light of the section 3553(a) sentencing factors and the totality of the circumstances,


                                           2                                    17-10193
the above-Guidelines sentence is substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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