                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50341
                                                       17-50410
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             2:15-cr-00173-JLS-2

JULIEN JITT NOEL,
                                                MEMORANDUM*
                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                       Argued and Submitted March 5, 2019
                              Pasadena, California

Before: COLE, Chief Circuit Judge, ** FISHER, and NGUYEN, Circuit Judges.

      Julien Noel appeals the district court’s decision to allow him to proceed pro

se at trial and sentencing, as well as his sentence. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

      The parties are in agreement that an abuse of discretion standard applies to the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Ransey Guy Cole, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
district court’s decision to allow Noel to proceed pro se. See United States v.

Thompson, 587 F.3d 1165, 1170–71, n.2 (9th Cir. 2009). This “standard requires us

to uphold a district court determination that falls within a broad range of permissible

conclusions in the absence of an erroneous application of law.” Grant v. City of

Long Beach, 315 F.3d 1081, 1091 (9th Cir. 2002) (citing Cooter & Gell v. Harmarx

Corp., 496 U.S. 384, 400 (1990)).

      Recognizing that “[t]he district court was in the best position to observe

[Noel’s] behavior and to make the determination that [Noel] had the mental capacity

to represent [himself,]” we cannot say that the district court abused its discretion in

allowing him to do so. United States v. Johnson, 610 F.3d 1138, 1146 (9th Cir.

2010) (citations omitted); Indiana v. Edwards, 554 U.S. 164, 177 (2008) (noting that

trial judges “will often prove best able to make more fine-tuned mental capacity

decisions, tailored to the individualized circumstances of a particular defendant”).

The district court had Noel psychiatrically evaluated on multiple occasions by

multiple experts who considered “both [Noel’s] competence to represent [himself]

as well as [his] competence to stand trial.” Johnson, 610 F.3d at 1146. And

hindsight shows us that Noel actively participated in his defense at trial: he proposed

voir dire questions, filed pretrial motions, gave an opening statement, cross-

examined witnesses, and delivered a closing argument.            This type of active

participation is significant evidence of competence. See id.; Edwards, 554 U.S. at


                                          2                                    17-50341
175–76 (holding that courts should look to whether a defendant is “unable to carry

out the basic tasks needed to present his own defense without the help of counsel”).

Consequently, we hold that the district court did not abuse its discretion in allowing

Noel to represent himself at trial.

       Noel next argues that even if the court properly allowed him to proceed pro

se at trial, it should not have allowed him to continue doing so at sentencing. But

the district court’s decision was supported by an additional psychological evaluation

that concluded Noel remained competent to proceed pro se and a Field Report from

the U.S. Marshals that indicated Noel could be malingering. Thus, the district

court’s conclusion that there had “been no change in [Noel’s] mental status and that

his behavior is the result of his own decision as to how to pursue his case,” (Second

Sentencing Hr’g Tr., E.R. 440), was not an abuse of discretion. Johnson, 610 F.3d

at 1147 (“In the absence of any mental illness or uncontrollable behavior,

[defendants] had the right to present their unorthodox defenses and argue their

theories to the bitter end.”).

       Finally, Noel raises two challenges to his sentence. When a defendant fails to

object at sentencing to perceived procedural errors—as was the case here—we

review for plain error. United States v. Sandoval-Orellana, 714 F.3d 1174, 1180

(9th Cir. 2013); see also United States v. Burgum, 633 F.3d 810, 814 (9th Cir. 2011).




                                          3                                   17-50341
      Noel first argues that the trial court’s two-level increase during sentencing

was an unauthorized and unexplained upward departure. But the court correctly

stated Noel’s total offense level, criminal history category, and guidelines range, and

then explicitly stated a two-level upward variance was warranted after considering

the § 3553(a) factors.      There is thus no reason to find that the sentencing

enhancement was an unwarranted departure.           Furthermore, the court gave an

adequate explanation for why it was imposing a variance. We thus cannot say the

district court plainly erred.

      Noel next argues that the two-level enhancement was on the basis of his lack

of remorse and was inappropriately based on his decision to remain silent and/or

proceed to trial—thus violating his Fifth and Sixth Amendment rights. But the

sentencing increase was the result of consideration of a variety of permissible

factors, not just his lack of remorse, and the record does not support Noel’s argument

that the district court drew an adverse inference from his decision to remain silent.

The district court provided several reasons for the sentence increase—namely,

Noel’s behavior that demonstrated a likelihood of re-offense, the need for additional

deterrence, the need to protect the public, and the fact that “this was a sophisticated

scheme and that there has been no acknowledgement by the defendant of any of his

wrongdoing in this scheme[.]”       (Second Sentencing Hr’g Tr., E.R. 450–51.)

Accordingly, despite the district court’s comments regarding Noel’s lack of remorse,


                                          4                                    17-50341
there was an extensive explanation of other reasons the sentence was imposed. Noel

is thus not entitled to resentencing on this ground. See United States v. Johnston,

789 F.3d 934, 943 (9th Cir. 2015).

      As to Noel’s argument regarding his decision to go to trial, it is well

established that “[a] defendant’s right to contest his guilt before a jury is protected

by the Constitution, and his decision to do so ‘cannot be held against him.’” United

States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir. 2013) (quoting United States

v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002)). As articulated above, however,

Noel’s failure to accept responsibility, or his lack of remorse, was not the sole factor

in his increase in sentence. And unlike the court in United States v. Hernandez, 894

F.3d 1104 (9th Cir. 2018), on which Noel relies, the district court here made no

comment during sentencing regarding Noel’s decision to go to trial. There is thus

no basis to conclude that the district court improperly relied on Noel’s decision to

go to trial when imposing his sentence.

      AFFIRMED.




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