United States of America v. Glenn Steven Scott

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GLENN STEVEN SCOTT,
Defendant-Appellant.
No. 16-30155
D.C. No. 6:09-cr-00025-CCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Glenn Steven Scott appeals pro se from the district court’s judgment and
challenges the 135-month sentence imposed following his guilty-plea conviction
for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B),
and destruction or removal of property to prevent seizure, in violation of 18 U.S.C.
* 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
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 2232(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm
Scott contends that the district court erred by considering his conduct in
absconding from pre-trial release when fashioning his sentence. Because Scott did
not raise this objection in the district court, we review for plain error. See United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district
court did not plainly err. Contrary to Scott’s contention, the government’s promise
in the oral plea agreement that it would not prosecute Scott for absconding, and the
district court’s recognition of this promise, did not preclude the district court from
considering this conduct at sentencing. See United States v. Christensen, 732 F.3d
1094, 1104 n.2 (9th Cir. 2013) (“[A] sentencing court may rely on any evidence
relating to a defendant’s background, character, and conduct when considering the
sentencing factors found in 18 U.S.C. § 3553(a).”); see also United States v.
Streich, 560 F.3d 926, 930 (9th Cir. 2009) (finding no breach of a plea agreement
where government advocated for a higher sentence based on conduct for which it
had promised not to prosecute the defendant).
Scott next contends that the district court violated his statutory and
constitutional rights by denying him the opportunity to present mitigating evidence
at sentencing. This argument is unsupported by the record. When Scott informed
the district court that he and his counsel disagreed over the presentation of certain
evidence, the district court continued the initial sentencing hearing and appointed

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new counsel to permit Scott to present the evidence in question. After consultation
with new counsel, Scott decided against presenting the evidence. Contrary to
Scott’s contention, the district court’s comments to Scott do not reveal bias.
To the extent Scott contends that he received ineffective assistance of
counsel at sentencing, we decline to consider this claim on direct appeal. See
United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011) (this court
reviews ineffective assistance claims on direct appeal only where the record is
sufficiently developed or inadequate representation is obvious).
We decline to consider issues raised for the first time in Scott’s reply brief.
See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).
AFFIRMED.

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