                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 26 2012

                                                                        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. 11-30206

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00120-RMP

  v.
                                                 MEMORANDUM *
TOMAS RODRIGUEZ-VERDUZCO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                 Rosanna Malouf Peterson, Chief Judge, Presiding

                        Argued and Submitted June 7, 2012
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and KOBAYASHI,
District Judge.**

       Defendant Tomas Rodriguez-Verduzco (“Rodriguez”) appeals his sentence

of thirty-seven months of imprisonment for Count One: conspiracy to manufacture

marijuana of 1,000 or more plants and Count Three: destruction of government


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
property. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      First, Rodriguez challenges the district court’s denial of his request for

additional funding under the Criminal Justice Act (“CJA”) for neuropsychological

evaluations beyond those that the district initially approved. This court reviews for

an abuse of discretion a district court’s denial of a request for funding for expert

services pursuant to 18 U.S.C. § 3006A(e)(1). United States v. Reed, 575 F.3d

900, 918 (9th Cir. 2009). This court applies a clearly erroneous standard of review

to the district court’s findings of fact. United States v. McEnry, 659 F.3d 893, 896

(9th Cir. 2011).

      In order to prevail on an appeal of the district court’s denial of funds for

expert services, the appellant “must show by clear and convincing evidence that

(1) a reasonably competent counsel would have required the assistance of the

requested expert for a paying client, and (2) he was prejudiced by the lack of expert

assistance.” Reed, 575 F.3d at 918 (citation and internal quotation marks omitted).

The district court found that the declarations by A.M. Llorente, Ph.D., and Monica

Delgado, Ph.D., did not support an award beyond the $2,400 per expert that the

district court previously authorized pursuant to 18 U.S.C. § 3006A(e)(3). This

finding was not clearly erroneous. In support of the doctors’ opinions that

Rodriguez may have a cognitive impairment that would be relevant to sentencing,



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Dr. Llorente’s and Dr. Delgado’s declarations contained only generalized reasons

which could apply to many different defendants. Further, the district court

presided over a contested sentencing hearing lasting four days and, in determining

Rodriguez’s sentence, the district court specifically commented on some of the

factors that Drs. Llorente and Delgado addressed, including Rodriguez’s youth,

limited education, and limited life experience. Rodriguez has failed to established

by clear and convincing evidence that a reasonably competent counsel would have

required Drs. Llorente and Delgado’s additional assistance for a paying client, or

that he was prejudiced by the lack of their additional services. We therefore hold

that the district court did not abuse its discretion when it denied Rodriguez’s CJA

request for additional expert services.

      Second, Rodriguez argues that the district court committed reversible

procedural error by failing to address the mitigating factors that he raised and his

individual circumstances. Insofar as Rodriguez failed to object to these issues

during the sentencing hearing, the plain error standard of review applies. See

United States v. Grant, 664 F.3d 276, 279 & n.2 (9th Cir. 2011). A district court

determining what sentence to impose upon a defendant is not required to “tick off

each of the [18 U.S.C.] § 3553(a) factors to show that it has considered them.”

United States v. Ellis, 641 F.3d 411, 422 (9th Cir. 2011) (citation and quotation



                                           3
marks omitted). Nor was the district court required to give a lengthy explanation

for Rodriguez’s sentence because it was within the range provided in the United

States Sentencing Guidelines (“USSG”). See United States v. Valencia-Barragan,

608 F.3d 1103, 1108 (9th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338,

356 (2007)), cert. denied, 131 S. Ct. 539 (2010). As previously noted, the district

court specifically discussed some of the mitigating factors that Rodriguez relied

upon. That Rodriguez’s co-defendant shared these factors does not establish that

the district court failed to consider Rodriguez’s individual circumstances and

arguments. We therefore reject Rodriguez’s argument that the district court

committed plain error by failing to address his mitigation arguments and individual

circumstances.

      Third, Rodriguez argues that the district court committed a reversible

procedural error by sentencing him to thirty-seven months of imprisonment each

for Count 1 and Count 3 because Count 3 had a significantly lower sentencing

range under the USSG. The district court, however, calculated a combined

adjusted offense level for Count 1 and Count 3, and this calculation was consistent

with the procedures described in United States v. Evans-Martinez, 611 F.3d 635,

639-40 (9th Cir. 2010), cert. denied, 131 S. Ct. 956 (2011), and with the applicable

sections of the USSG, §§ 3D1.1, 3D1.2, 3D1.3, and 3D1.4. We therefore hold that



                                          4
there was no procedural error.

      Finally, Rodriguez argues that the imposition of a thirty-seven-month

sentence for both Count 1 and Count 3 was substantively unreasonable. For the

reasons set forth with respect to Rodriguez’s first three arguments, we also hold

that, based on the totality of the circumstances in this case, Rodriguez’s sentence

was sufficient, and not greater than necessary, to accomplish the sentencing goals

of § 3553(a)(2). See United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir.

2011), cert. denied, 132 S. Ct. 1614 (2012).

      Accordingly, we AFFIRM Rodriguez’s sentence and the district court’s

denial of additional expert funding.




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