                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 15 2011

                                                                       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. 09-30298

              Plaintiff - Appellee,              D.C. No. 2:04-cr-00512-JLR-1

       v.
                                                 MEMORANDUM *
WARREN ERIC ARMSTEAD,

              Defendant - Appellant.

                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                       Argued and Submitted March 7, 2011
                               Seattle, Washington

Before: McKEOWN, FISHER and GOULD, Circuit Judges.

      Warren Eric Armstead appeals the within-Guidelines, 175-month sentence

imposed following his conviction on one count of conspiracy to commit bank fraud

and nine counts of substantive bank fraud. We affirm.

      1. The district court properly denied Armstead’s request for a two-level

adjustment for acceptance of responsibility because Armstead steadfastly refused


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to accept responsibility for his leadership role in the conspiracy, even after

conviction. See United States v. Schales, 546 F.3d 965, 976 (9th Cir. 2008) (“A

defendant is entitled to a downward adjustment if he clearly accepts responsibility

for all of his relevant conduct.”); see also United States v. McKinney, 15 F.3d 849,

853 (9th Cir. 1994) (“Where the defendant’s statements and conduct make it clear

that his contrition is sincere, . . . he is entitled to the reduction even if he is

convicted after a trial.” (emphasis added)).

       2. The district court did not fail to consider 18 U.S.C. § 3553(a)(6). First, a

district court “need not tick off each of the § 3553(a) factors to show that it has

considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en

banc). Second, the district court expressly discussed the issue of unwarranted

disparities during the sentencing hearing.

       3. Armstead complains that the district court failed to adequately explain the

disparity between his sentence and that of four of his coconspirators who did not

cooperate with the government. A district court, however, need only explain its

reasons for rejecting “a specific, nonfrivolous argument tethered to a relevant

§ 3553(a) factor.” Carty, 520 F.3d at 992-93 (emphasis added). In the district

court, Armstead raised only a general argument that his sentence should be

proportionate to his eight coconspirators. Only on appeal does he specifically


                                              2
argue that his sentence is disproportionate to the four non-cooperating

coconspirators in particular. The district court’s explanation was adequate under

the circumstances.

      4. The disparity between Armstead’s sentence and those of his

coconspirators does not render his sentence substantively unreasonable. See 18

U.S.C. § 3553(a)(6). Although the non-cooperating coconspirators received lower

sentences than Armstead, they are not similarly situated for purposes of

§ 3553(a)(6). See United States v. Carter, 560 F.3d 1107, 1121 & n.3 (9th Cir.

2009) (rejecting the defendant’s contention of unwarranted sentencing disparities

where the codefendants were either convicted of fewer offenses or cooperated with

the government).

      5. Armstead’s excerpts of record contain government sentencing

memoranda and criminal judgments from 20 other criminal cases involving

defendants sentenced for bank fraud. Armstead contends that these documents

show that his sentence is substantively unreasonable by comparison. The

government has moved to strike Armstead’s evidence because it was not presented

to the district court. We grant the motion. See United States v. Elias, 921 F.2d

870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court

are not part of the record on appeal.”). Armstead’s contention that the evidence is


                                          3
properly included in the appellate record because it consists of documents filed in

other district court cases is without merit. See Kirshner v. Uniden Corp. of Am.,

842 F.2d 1074, 1077-78 (9th Cir. 1988) (explaining that the record on appeal is

limited to materials placed before the district court). The government’s motion is

GRANTED. We therefore do not reach the merits of Armstead’s argument.

      6. That the advisory sentences for bank fraud have increased in the past 24

years does not establish that the current advisory sentences are unreasonable.

Furthermore, although Armstead’s adjusted offense level reflects a 14-level

increase for a loss amount over $400,000, a 2-level increase for more than 10

victims, a 2-level increase for possession of more than five means of identification

and a 4-level increase for being a leader or organizer, the cumulative impact does

not constitute improper double counting because each provision serves a unique

purpose. See United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007). The

district court did not abuse its discretion by concluding that a within-Guidelines

sentence was “sufficient, but not greater than necessary, to comply with the

purposes” of sentencing. 18 U.S.C. § 3553(a).

      7. Armstead’s contention that the district court imposed his sentence in

retaliation for exercising his constitutional right to trial is without merit. See

United States v. Narramore, 36 F.3d 845, 847 (9th Cir. 1994) (“Incentives for plea


                                            4
bargaining are not unconstitutional merely because they are intended to encourage

a defendant to forego constitutionally protected conduct.”).

      AFFIRMED.




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