United States of America v. Carolina McLean

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CAROLINA MCLEAN,
Defendant - Appellant.
No. 13-50006
D.C. No. 3:11-cr-03203-AJB-2
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted May 15, 2014
Pasadena, California
Before: KOZINSKI, Chief Judge, WARDLAW and FISHER, Circuit
Judges.
At oral argument, Appellant’s counsel waived McLean’s claim that the trial
court improperly admitted Chase deposit receipts into evidence. See Vinson v.
Thomas, 288 F.3d 1145, 1148 n.1 (9th Cir. 2002). Appellant’s remaining claim
that the sentencing court failed to apply the rule of lenity in assessing her eligibility
FILED
JUN 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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for safety valve relief under 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5)
misapprehends that rule. The rule of lenity is a “principle of statutory
construction” designed to ensure that “‘the Court will not interpret a federal
criminal statute so as to increase the penalty that it places on an individual when
such an interpretation can be based on no more than a guess as to what Congress
intended.’” Bifulco v. United States, 447 U.S. 381, 387 (1980) (quoting Ladner v.
United States, 358 U.S. 169, 178 (1958)). The Supreme Court “has emphasized
that the ‘touchstone’ of the rule of lenity ‘is statutory ambiguity.’” Id. (quoting
Lewis v. United States, 445 U.S. 55, 65 (1980)).
Appellant doesn’t argue that the statutory or Guidelines language defining
eligibility for safety valve relief is ambiguous. Instead, she claims that there were
ambiguities in the evidentiary materials presented to the sentencing court, and that
the court should have resolved these ambiguities in her favor. There is no such
constraint on the sentencing judge’s fact-finding. Cf. United States v. Freter, 31
F.3d 783, 786 n.3 (9th Cir. 1994). The judge “d[idn’t] find Ms. McLean’s
explanation post trial any more credible than what she said at trial.” This finding
was not clearly erroneous. See United States v. Orm Hieng, 679 F.3d 1131, 1144
(9th Cir. 2012).
AFFIRMED.

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