United States of America v. David Posey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID POSEY,
Defendant-Appellant.
No. 19-30058
D.C. No. 2:18-cr-00280-RSL-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
David Posey appeals from the district court’s judgment and challenges the
37-month sentence imposed following his guilty-plea conviction for tampering
with a witness, in violation of 18 U.S.C. § 1512(b)(3). 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).
FILED
DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 19-30058
Posey contends that the district court procedurally erred by using an
incorrect Guidelines range as the touchstone for the sentence, and by failing to
explain the sentence adequately. We review for plain error, see United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there
is none. The record reflects that the district court used the correctly calculated,
undisputed Guidelines range as the starting point and initial benchmark for the
sentence, and sufficiently explained its determination that a sentence within that
range would not adequately account for Posey’s extensive criminal history. See
United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).
Posey also contends that the sentence is substantively unreasonable because
the district court gave undue weight to his criminal history. The district court did
not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
above-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) factors and the totality of the circumstances, including Posey’s criminal
history and the nature of the offense. See Gall, 552 U.S. at 51; see also United
States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be
given the various factors in a particular case is for the discretion of the district
court.”).
AFFIRMED.

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